ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 9 July 2019 DOCKET NUMBER: AR20190003576 APPLICANT REQUESTS: In effect that his undesirable discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 2 January 2019 * DD Form 293 (Application for the Review of Discharge From the Armed Forces of the United States), dated 2 January 2019 * Special Orders Number 269, issued by Headquarters, The School Brigade, U.S. Army Infantry School (USAIS), Fort Benning, Georgia on 26 October 1970 * Special Orders Number 90, issued by Headquarters, 101st Airborne Division (Airmobile) on 31 March 1971 * General Orders Number 24, issued by Headquarters, 101st Airborne Division (Airmobile) on 24 January 1972 (two copies) * General Orders Number 988, issued by Headquarters, 101st Airborne Division (Airmobile) on 1 February 1972 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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: a. The hearing official would not allow any defense on his behalf or anyone to speak on his behalf. His hearing lasted not more than 10 minutes. He was the only black noncommissioned (NCO) in the company who had less than 14 years in service. He was a 22-year old sergeant and he believes he was treated very unfairly and humiliated at every opportunity available. b. He was subjected to racial bias on day one upon his arrival at Fort Bragg, NC; all people of color were treated very harshly. He was told he must have been mistaken by what he heard. He later learned the Soldiers were Klansmen and he should be quiet. Upon his arrival at the 2nd Battalion, 325th Infantry Regiment, he was asked "what's a colored boy doing with a Bronze Star Medal?" and "How did a n***** get to be an E-5?" He reported it all to the battalion sergeant major and he was told not to take it any further. He was told he was overpaid and his pay was forfeited for three months. He contacted the Red Cross Finance Office for two months with no results and he also approached his chain of command. At his hearing, he was told none of the allegations he reported ever happened and that was the last time he would ever mention them. c. He was stopped three times by the military police because it was reported he had military parachutes in the trunk of his privately owned vehicle. He was stopped one time after it was said he had live ammunition. On two occasions he was given leave, and after his family drove from Florence, SC to Fort Bragg, NC, he was told he was needed for weekend duty. He was up for promotion to staff sergeant and his paperwork was lost. He was later told he was too young to be a staff sergeant. 3. The applicant enlisted in the Regular Army on 9 February 1970. He completed training as a light weapons infantryman. 4. The applicant arrived in Vietnam on 18 March 1971 and he was assigned to Company B, 1st Battalion, 502nd Infantry Regiment (Airmobile). 5. The applicant departed Vietnam enroute to the U.S. on 29 January 1972. He was assigned to Company B, 2nd Battalion (Airborne), 325th Infantry Regiment on 6 March 1972. 6. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 5 July 1972, for failure to obey a lawful order by failing to obey a traffic signal, on or about 7 May 1972 * on 5 July 1972, for failure to go at the time prescribed to his appointed place of duty, on or about 27 June 1972 * on 16 August 1972, for being absent without leave (AWOL) from on or about 7 August until on or about 14 August 1972 7. Court-martial charges were preferred against the applicant on 14 November 1973 for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 17 June until on or about 7 November 1973. 8. Court-martial charges were preferred against the applicant on 5 December 1973 for violations of the UCMJ. His DD Form 458 shows he was charged with the following: * being AWOL from on or about 11 December 1972 until on or about 3 April 1973 * being AWOL from on or about 24 November until on or about 29 November 1973 * being AWOL from on or about 4 December until on or about 7 December 1973 9. The applicant consulted with legal counsel on 7 December 1973. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf. His request shows he elected to submit a statement, in which he noted that he disliked the service because during the time he was in a non-pay status, he received no financial assistance from any of the numerous services on post. Also, he had another reason, which was a physical disability and he did not believe he could adapt himself to military life once again. His mental ability had been in question during the last few weeks. All of the stated reasons and more were why he wanted to be discharged from the service. 10. The separation authority approved the applicant's request for discharge on 16 January 1974 and directed his reduction to the lowest enlisted grade and the issuance of a DD Form 258A (Undesirable Discharge Certificate). 11. The applicant was discharged on 29 January 1974, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court- martial. His DD Form 214 confirms he was discharged in the lowest enlisted grade and he was issued an Undesirable Discharge Certificate. 12. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 13. Army Regulation 635-200, in affect at that time, set forth the policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons. 14. The applicant provides a copy of General Orders Number 988, issued by Headquarters, 101st Airborne Division (Airmobile) on 1 February 1972, awarding him the Bronze Star Medal for meritorious service in the Republic of Vietnam from March 1971 to March 1972. This award is not listed on his DD Form 214. 15. A review of the applicant's Official Military Personnel File reveals additional orders and information that shows he received several awards that are not currently listed on his DD Form 214. 16. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 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 frequency and nature of his misconduct, his service in and awards from Vietnam, the change in performance upon returning to CONUS and whether to apply clemency. Based on his overall record of service, his statement and the misconduct, the Board found sufficient mitigating factors to grant a clemency upgrade of the applicant’s character of service. 2. After reviewing the application and all supporting documents, the Board determined 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: 1. In addition to the Administrative Corrections noted below, 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 29 January 1974 to show in item 9 (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): A review of the applicant's record shows his DD Form 214 (Report of Separation from Active Duty), for the period ending 29 January 1974, is missing important entries that may affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 26 (Decorations, Medals, Badges, Commendation, Citation and Campaign Ribbons Awarded or Authorized): * Bronze Star Medal * Air Medal * Combat Infantryman Badge * Parachutist Badge 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. a. Paragraph 3-7a states that 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 states that 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. c. Chapter 10 states that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, an undesirable discharge would normally be furnished to an individual who was discharged for the good of the service. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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 on the basis of equity, injustice, or clemency grounds, Boards 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) AR20190003576 4 1