ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 October 2019 DOCKET NUMBER: AR20190004362 APPLICANT REQUESTS: in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 27 February 1970 to show: * award of the Combat Infantryman Badge (CIB) * a more favorable reenlistment code in item 15 (Reenlistment Code) * removal of the entry "11 Aug - 8 Sep 68" from item 26a (Non-Pay Periods Time Lost) * removal of the entry "Additional time lost not shown in Item 26a: 16 days lost under 10 USC 972 from 22 Sep – 7 Oct 69" from item 30 (Remarks) * removal of the entry "EM retained in service 111 days Convenience of the Government pending Court Martial" from item 30 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * a letter * a memorandum * item 38 (Record of Assignments) of DA Form 20 (Enlisted Qualification Record) * Standard Form (SF) 600 (Chronological Record of Medical Care) * SG Form 84-R (Clinical Record Cover Sheet) * Certification of Vital Record * Letter of Testimonial * Decree of Divorce * Certificate of Death * Arrest Record * DA Form 20B (Insert Sheet to DA Form 20) * SF Form 513 (Consultation Sheet) * Special Court-Martial Order Number 298 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 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 when the items listed above are put into their proper context with the documented sequence of events and followed to their logical conclusion, a continuous fact pattern will show how unjust the items are. The applicant further states his post-traumatic stress disorder (PTSD) includes a lack of trust with the Department of Veterans Affairs, the government, and authority. This lack of trust has impaired his ability to deal with correcting the DD Form 214 for the past 40 plus years. 3. The applicant was inducted into the Army of the United States on 17 October 1966. 4. The applicant was awarded military occupational specialty 11B (Light Weapons Infantryman) and he served in the Republic of Vietnam from 20 April 1967 to 19 April 1968. 5. Item 38 of his DA Form 20 shows he served with the following units in Vietnam: * Troop B, 3rd Squadron, 4th Cavalry Regiment, 25th Infantry Division, 28 April 1967 to 31 August 1967 * Troop C, 3rd Squadron, 4th Cavalry Regiment, 25th Infantry Division, 1 September 1967 to 5 September 1967 * Troop D, 3rd Squadron, 4th Cavalry Regiment, 25th Infantry Division, 6 September 1967 to 6 October 1967 * Headquarters and Headquarters Troop, 3rd Squadron, 4th Cavalry Regiment, (Long Range Reconnaissance Patrol), 25th Infantry Division, 7 October 1967 to 19 December 1967 * Company F, 50th Infantry Regiment (Long Range Patrol), 25th Infantry Division, 20 December 1967 to 14 April 1968 6. Item 45 (Item Continuation) of his DA Form 20 notes the applicant was absent without leave for the period 11 August 1968 to 8 September 1969. For the period 22 September 1969 to 7 October 1969, he was in post-trial confinement after his expiration term of service. 7. The applicant's records contain: a. Special Court-Martial Order Number 1977, issued by Headquarters, Troop Command, USAG, Fort Carson, CO, dated 20 October 1969, which shows the applicant pled guilty and was found guilty of absenting himself from his unit from on or about 14 October 1968 to 22 September 1969. b. Special Court-Martial Order Number 298, issued by Headquarters, Troop Command, USAG, Fort Carson, CO, dated 26 February 1970, which shows the applicant pled not guilty and was found not guilty of absenting himself from his unit from 2 November 1969 to 20 January 1970. 8. The applicant was honorably released from active duty on 27 February 1970. He completed 2 years, 3 months and 21 days total active service with 1 year of foreign service in Vietnam. The DD Form 214 he was issued shows he was awarded the: * National Defense Service Medal * Vietnam Service Medal with one bronze service star * Republic of Vietnam Campaign Medal with Device (1960) 9. This form further shows in: * item 15, RE-3B * item 26a, 11 Aug - Sep 68 and 14 Oct 68 – 21 Sep 69 * item 30, Additional time lost not shown in item 26a: 16 days lost under 10 USC 972 from 22 Sep – 7 Oct 69; EM retained in service 111 days Convenience of the Government pending Court Martial 10. There is no evidence in the available records and the applicant did not provide any evidence that shows he was either recommended for or awarded the CIB by proper authority. 11. The applicant provides: a. A letter from an aftercare coordinator, PTSD Residential Treatment Program, Denver, CO, Veterans Affairs Medical Center, dated 4 March 2019, who opines the applicant's current rating does not accurately capture the degree to which his PTSD impinges on his social, occupational, and life functioning. b. A memorandum from a National Service Officer, Disabled American Veterans, to "27E" who states the applicant was awarded the CIB. c. 25 color coded support documents. 12. A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders for the CIB pertaining to the applicant. 13. The applicable regulation states there are basically three requirements for award of the CIB. The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat. 14. The applicable regulation states reenlistment code RE-3B pertains to Soldiers who are not eligible for reenlistment unless a waiver is granted by the commander concerned. This code is only applicable to enlisted persons classified as ineligible for reenlistment because of time lost during their last period of service. 15. The applicable regulation states when an enlisted person is retained in service beyond the date of expiration of his term of service enter, "Retained in service ___ days for convenience of the Government." Enter authority if applicable. If the individual lost any time prior to normal expiration term of service, enter the total number of days lost with inclusive dates. Any time lost subsequent to normal expiration term of service will be shown separately. 16. 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. 17. The applicant provided statements on his application to the Board, and medical documentation showing he suffers from PTSD that the Board should consider in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found partial relief is warranted. The Board also concurred with the administrative corrections addressed in Administrative Note(s) below. 2. The Board agreed that the applicant's service as an infantryman in a Long Range Patrol unit during the Tet Counteroffensive supports a conclusion that he actively participated in active ground combat with his unit, thereby making him eligible for the CIB. 3. The Board found no basis for correcting the record to show a more favorable reenlistment code in item 15 of his DD Form 214. Based on his time lost due to being AWOL, he would have required a waiver to reenlist. The Board found no evidence of error or injustice with regard to his reenlistment code. 4. The Board agreed that, although the applicant claims he did not have lost time from 11 August to 8 September 1968, the period is recorded as lost time in his record and other than his own statement there is no evidence indicating the entry is an error. The Board found no evidence of error or injustice that would support a recommendation to remove the entry "11 Aug - 8 Sep 68" from item 26a of his DD Form 214. 5. The record shows the applicant was in post-trial confinement during the period 22 September to 7 October 1969. The Board found no evidence in the available records error or injustice in the entry "Additional time lost not shown in Item 26a: 16 days lost under 10 USC 972 from 22 Sep – 7 Oct 69" in item 30 of his DD Form 214. 6. The entry "EM retained in service 111 days Convenience of the Government pending Court Martial" in item 30 of his DD Form 214 was a required entry documenting the fact the reason the applicant was retained on active duty past the expiration of his term of service. The Board agreed that the record confirms the entry accurately describes the circumstances under which he was retained on active duty, and there is no evidence of error or injustice in this entry. 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: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, in addition to the administrative corrections addressed in Administrative Note(s) below, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the Combat Infantryman Badge for his period of service in Vietnam and by adding the badge to his DD Form 214. 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 his reenlistment code and entries on his DD Form 214 documenting lost time and time retained in service for the convenience of the Government. 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 NOTES: The following orders and regulatory cites are sufficient to make the following administrative corrections to the applicant's DD Form 214 for the period ending 27 February 1970, without action by the Board: * Special Order (SO) 331, issued by Headquarters (HQ), U.S. Army Training Center (AD), Fort Bliss, TX, on 4 December 1966, awarded him the Sharpshooter Marksmanship Qualification Badge with Rifle Bar M-14 * SO 049, issued by HQ, Fort Polk, Fort Polk, LA, on 23 February 1967, awarded him the Second Class Gunner Marksmanship Qualification Badge with Machine Gun Bar M-60 * Department of the Army General Order Number 48, dated 1971, awarded his unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation * DA PAM 672-3 paragraph 8a (4, 5, 6, 7) a. delete the Vietnam Service Medal (VSM) with one bronze service star from item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized). b. add to item 24: * VSM with four bronze service stars * Sharpshooter Marksmanship Qualification Badge with Rifle Bar M-14 * Second Class Gunner Marksmanship Qualification Badge with Machine Gun Bar M-60 * 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 three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (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 600-8-22 (Military Awards) states there are basically three requirements for award of the CIB. The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat. 3. Change 8, Army Regulation 635-5 (Personnel Separations – Separation Documents), then in effect, states reenlistment code RE-3B pertains to Soldiers who are not eligible for reenlistment unless a waiver is granted by the commander concerned. This code is only applicable to enlisted persons classified as ineligible for reenlistment because of time lost during their last period of service. 4. Army Regulation 635-5, then in effect, states when an enlisted person is retained in service beyond the date of expiration of his term of service enter, "Retained in service ___ days for convenience of the Government." Enter authority if applicable. If the individual lost any time prior to normal expiration term of service, enter the total number of days lost with inclusive dates. Any time lost subsequent to normal expiration term of service will be shown separately. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190004362 8 1