ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 October 2019 DOCKET NUMBER: AR20190004756 APPLICANT REQUESTS: The applicant requests an upgrade of his characterization of service from under honorable conditions to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .DD Form 149 (Application for Correction of Military Record) .DD Form 214 (Armed Forces of the United States Report of Transfer orDischarge) FACTS: 1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file. 2.The applicant states it has been almost 50 years since he was discharged. 3.On 16 November 1967, with an 11th grade education and at the age of 20, theapplicant was inducted into Army of the United States for 2 years. He completedtraining, was awarded military occupational specialty 13A (Field Artilleryman) andassigned to the Republic of Vietnam. 4.He served in Vietnam from 21 April 1968 to 20 April 1969. While in Vietnam, hereceived: a.Nonjudicial punishment (NJP) under the provisions of Article 15 for wrongfullyhaving in his possession and wrongfully using, some amount of marijuana on 12 June 1968. His punishment consisted of reduction to pay grade E-2 and a forfeiture of pay. b.Orders awarding him the Bronze Star Medal for Heroism for action on 4 November 1968 while assigned to Battery A, 6th Battalion, 29th Artillery, 4th Infantry Division, it states: For heroism in connection with military operations against an armed hostile force in the Republic of Vietnam. [The applicant] distinguished himself while serving as a cannoneer. [The applicant's] firebase was subjected to an intense enemy heavy weapons attack. Braving the intense enemy fire, he remained at his howitzer position and assisted in placing accurate counter fire on the enemy positions. In addition, he acted as an observer and located several recoilless rifle positions in close proximity to the firebase. Then directing his howitzer section's fire, he was instrumental in the destruction of two of the enemy recoilless rifle positions. His courageous acts, initiative and exemplary devotion to duty are in keeping with the highest traditions of the military service and reflect great credit upon himself, his unit and the United States Army. c.Orders awarding him the Army Commendation Medal on 28 January 1969 formeritorious service from April 1968 to April 1969. d.His records show he received conduct and efficiency ratings of excellentthroughout his service. 5.Upon his return to the continental United States, he was assigned to Fort Sill, OK.On 27 April 1969, he was arrested while on an authorized pass and charged with twocounts of voluntary manslaughter. On 27 October 1969, he was convicted andsentenced to serve two 20 year terms to run concurrently. The applicant did not appealhis civil conviction within the time allowed. 6.A Personal Data Regarding Accused form shows the applicant's: .Rank as Corporal with an effective date of 13 January 1969 .Grammar and High School Completed: 11th Grade .Conduct and Efficiency Rating: Excellent .Awards: BSM, VSM [remaining illegible] .Accused of marijuana .Article 15 – 30 June 1968 (Article 134) 7.On 14 January 1970 the applicant's immediate commander recommended he bedischarged under the provisions of Army Regulation (AR) 635-206 (PersonnelSeparations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, andAbsence Without Leave or Desertion) due to conviction by civil authorities. Thecommander indicates the applicant was advised of the contemplated action and hisrights. The applicant provided a written response and requested that he be representedby counsel to plead his case before the board; he stated, whatever the courts may callit, it was not murder. Although he made a plea of guilty, he was not [guilty]. People thatdidn't even exist [were not present] that night were witnesses for the State. If everybody was against him, how can he win even though he knows he was right, instead of going to the gas chamber for something he did not do. He would do just as he had done. He wanted to have the commander transfer his incoming paycheck to his family because they were in great need of funds. 8.A memorandum for Record executed on 20 May 1969 by the Personnel Officer,Chief Warrant Officer Two (CW2) M, states, in pertinent part: a.On 20 May 1969 he received a call from the American Red Cross indicating theapplicant's mother notified them he was due to report to Fort Sill, OK and was in jail on charges of two counts of murder and felt they should know. b.CW2 was advised the applicant was an assigned gain of the Headquarters,Headquarters Battalion on 23 April 1969. He called the Sheriff's office and spoke to Sherriff W and was advised that the information obtain was correct; however, one of the murder charges had been dropped by reason of self-defense and the other had been reduced to manslaughter. Sherriff W also advised the applicant was being held on bond and the case would not be heard until at least the October session of the Grand Jury. CW2 M asked the Sherriff to check with the applicant and see if they could locate his records; as of date he had received the records or heard back from the Sheriff. c.The applicant must be carried from an “in-transit” status to confined by civilauthority until he has been tried. If acquitted, he will report in and no further action will be required; if convicted, the commander will have to initiate action under the provisions of AR 635-206. 9.On 20 September 1969, CW2 M contacted the jailer and was advised the applicantwas still being held on one charge of manslaughter and due to go on trial 20 October1969 before the County Grand Jury. The Jailer also advised the applicant had counselthat was hired by his mother. 10.In May 1970, his intermediate commanders concurred and recommended hereceive an undesirable discharge 11.On 5 June1970, the applicant provided a statement written in his own behalf withdetails of what happened that night in which he states, in effect: a.He had been home from Vietnam for approximately two weeks when his brotherand friend asked him to go out. They were sitting in a booth when a man approached them and introduced himself and they shook hands; however, the man would not shake his brother's hand, so his brother stated to the man, "if he couldn't shake his hand after he shook his wife's hand then he needed to leave." The man left the table without saying a word and returned a couple hours later and was carrying a gun this time. He fired the gun a couple of times, the applicant could not see what direction he fired in. People standing near moved out of his way. (1)The gunman had a direct visual of their table; his brother was standing in thecenter [of the room]. The gunman pointed the gun directly at the applicant, so he got up from the table to prevent anyone else from getting hurt and went to the center of the room where his brother was. Prior to moving from the table, the applicant noticed his brother's pistol in a chair and picked it up. The gunman raised his gun and when he fired, the applicant also fired his brother's pistol once and the man fell. The applicant went to retrieve the gunman's weapon and people started crowding him. He had both weapons in his hand when a drunk man stumbled from the door into him, the gun he had went off and hit the man in the upper hip. (2)Both men were taken to the hospital and the applicant stayed in place forthe police to arrive. His first case took place four days later and he was acquitted. His next case went before a grand jury in October, where both cases were picked up. Neither of the police from the scene showed up. He was not present for the grand jury hearing. His lawyer talked him into pleading guilty for six years; however, the judge and the sentence was changed to ten years on each account. b.As far as the law is concerned, his constitutional rights were violated. Hebelieves people on the board or the judge should give people time to get things straightened out. His lawyer has refused to answer any of his letters. If [the commander] could assist by contacting his attorney to get information, it would be helpful. The applicant also provided his commander names and contact information of individual witnesses that night and stated after he received the money the Army owed him he was going to get a new trial. 12.On 16 June 1970, the applicant was advised that a board would convene todetermine if he should be separated prior to the expiration of his term of service. Theapplicant was confined in the Georgia Penitentiary and was unable to appear at theboard. The applicant’s immediate and intermediate commanders recommended theapplicant’s separation under the provisions of AR 635-206, due to civil conviction. 13.On 1 July 1970, the board convened at Fort Sill to determine if the applicant shouldbe separated prior to the expiration of his term of service. The applicant wasrepresented by counsel. The Board proceedings show: a.The recorder referenced change 2 of AR 635-206, provided information that theapplicant was awarded the Bronze Star Medal, had one Article 15, and stated the regulation required his past record be examined by the Board as well. The president asked counsel if a copy of the applicant's military record was available to review awards and decorations; the counsel advised that his section tried to obtain the record and failed to come up with anything. The recorder responded "it's on his form (4AA Form 135). b.Counsel gave opening/closing statements and stated: (1)He (Counsel) had worked with Major W before on "206" [AR 635-206] boardsbefore. On these cases where the respondent is absent, the JAG (Judge Advocate General) is at a loss. We cannot go to the respondent when he is in confinement. We do send letters to them. A letter was sent to the applicant stating counsel's position. Normally the respondent has a negative response. However, in this case he received a letter form the applicant. He showed several witnesses that could be contacted in his support. Letter were sent to these individuals and he has yet to receive a response. There is no change for retention. The applicant is in confinement for a minimum of five years on a twenty-year sentence and say that he be discharged. Counsel marked and respondent's exhibit for identification, offered it as evidence, and read it to the board. There were no objections by the Board. (2)The applicant could no longer be protected by the Army. Regulation statesthat a man's prior service should be taken into consideration and the applicant had received a Bronze Star Medal. The board asked under what circumstances was the Bronze Star awarded. The recorder responded "The fact that he was awarded the medal shows that it was for meritorious service or valor. The president advised the Bronze Star with a "V" device is issued for valor. The board stated the Bronze Star is for exceptional duty and the president stated, "it is normally given to artilleryman in the line of fire." (a)The recorder advised the commander did not state where the recordswere, the information on the award was taken from the form. (b)Counsel stated his record should be at [his unit] of assignment. He wasnot going to argue for retention. The applicant had been in the service since 1967 with conduct and efficiency ratings of excellent throughout. One Article 15 which is not available. He did not see why the board would be opposed to a general discharge. Paragraph 35 determines there are provisions for a general discharge and indicates that an Honorable or General discharge may be considered in this case. Counsel requested the board consider a general discharge, consider the prospects of his future. If he was to receive an undesirable discharge, he would have no opportunity for a future. 14.On 13 July 1970, the separation authority approved the recommendation todischarge the applicant from the Army under the provisions of AR 635-206, due to civilconviction with service characterized as general under honorable conditions. 15.On 16 July 1970, the applicant was discharged accordingly. His DD Form 214shows he completed 1 year, 5 months, and 11 days of net active service with 1 year of Foreign Service [Vietnam]. He had 441 days of lost time, due to being in confinement. He was authorized or awarded the: .National Defense Service Medal .Vietnam Service Medal with three bronze service stars .Vietnam Campaign Medal .Bronze Star Medal with “V” Device .Army Commendation Medal 16.AR 635-206 provided for the elimination of enlisted personnel when they were initiallyconvicted by civil court. Discharge may be ordered provided the individual is physically inthe custody of the civil authorities as the time the discharge action was initiated. a.The words "initially convicted or adjudged offender" will be construed to mean anadjudication of guilt of an offense by a court of competent jurisdiction without regard to whether a sentence has been imposed or suspended. Discharge or recommendations for discharge will not be effected or submitted until the individual has indicated in writing he does not intend to appeal the conviction, or until the time in which an appeal may be taken as expired, whichever is earlier, or if an appeal has been taken, until final action has been taken thereof. b.An individual who has been initially convicted and sentenced to confinement formore than 6 months, or regardless, of actual sentence to confinement is convicted for the commission of an offense for which a sentence to confinement in excess of 6 months is authorized by the Table of Maximum Punishments, Manual for Courts-Martial, 1951, will be considered for discharge. c.Transcripts from records of civil courts need not accompany recommendations forthe discharge of individuals under the designated discharge authority. A statement from the court to the effect that the individual has been initially convicted or adjudged an offender is sufficient. d.An individual who is to be discharged under this section will be given anundesirable certificate of discharge. 17.AR Paragraph 5-3 states the separation of enlisted personnel is the prerogative ofthe Secretary of the Army and will be effected only by his authority. The discharge orrelease of any enlisted member of the Army for the convenience of the Government willbe at the Secretary’s discretion and with the type of discharge as determined by him. 18.The applicant requests his under honorable conditions (general) discharge beupgraded to honorable. His record shows he was inducted, trained and assigned toVietnam. He received conduct and efficiency ratings of excellent throughout his service,to include during the time he received an Article 15. While assigned to Vietnam he was awarded the Bronze Star Medal with "V" Device and the Army Commendation Medal. Upon return from Vietnam, while in transit, he was charged with two counts of manslaughter; however: a.We are unable to determine what took place that resulted in his acquitted chargeresurfacing in October. The available evidence supports the applicant's current contention, as well as his contention in his letters to the Commander, that his civilian rights were being violated and clearly shows there was some unjust handling and/or approach within the process of his civilian conviction. During the process the Army confirmed on two occasions with the Sheriff and Jailer that the applicant was acquitted (self-defense) of the first murder charge in May and was awaiting the grand jury trial in October for the second murder charge. . During his civil conviction process, the applicant contended his attorney would not contact him; the Army confirmed he had an attorney and confirmed his attorney was not responding to their phone calls either. Additionally, the Army Administrative Board Proceedings shows there was concern for what was taking place, which even left the JAG at a loss on how to process his case; prior to the board hearing Army correspondence shows if the applicant was released the only intent was to have him report to his new unit; no other intent of the Army charging him was conveyed. b.Based on the evidence during the Army Administrative Board Proceedings, theboard was advised they were required by regulation to make their determination based on his past records which were not available to them, despite the command and JAG attempts to retrieve his records from his attorney and/or coordinate through the Jailer to no avail. As a result, the board based their determination only on the information provided on the Personal Information of the Accused form, which did not provide the applicant received the Bronze Star Medal with "V" device or the significant act of heroism associated with it; the Army Commendation Medal which was awarded for the entire duration of his tour in Vietnam and excellent conduct and efficiency ratings despite his onetime NJP. Additionally, the records were void of the required statement from the court to the effect that the individual has been initially convicted. 19.In reaching its determination, the Board can consider the applicant's petition and hisservice record 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 ofdischarge upgrade requests. The Board considered the applicant’s statement, hisrecord of service to include service in Vietnam, his award for valor, thefrequency and nature of his misconduct and the reason for his separation. TheBoard noted that the applicant was convicted on two counts by a civil court andsentenced to ten years on each account. The Board also noted that AR 635-206provided for the elimination of enlisted personnel when they were convicted by civil court with confinement for more than 6 months and that an individual who is to so discharged will be given an undesirable certificate of discharge.2.The Board noted that the applicant’s separation board considered his combat record,his Bronze Star Award for Valor, and his Army Commendation Medal, and inconsideration directed that he be given a general under honorable conditions dischargeinstead of an undesirable discharge. It is apparent that the separation board exercisedclemency in the interest of the applicant. However, due to his civil conviction, his overallservice was not so meritorious as to warrant a fully honorable discharge. The Boardfound insufficient evidence of in-service mitigation to overcome the misconduct and theapplicant provided no evidence of post-service achievements or letters of reference insupport of a clemency determination. Based on a preponderance of evidence, theBoard determined that the character of service the applicant received upon separationwas not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: After review of the application and all evidence, the Board found no error or injustice in the applicant’s general discharge. The Board agreed that the applicant’s general discharge characterization is appropriate and equitable under the circumstances. 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. REFERENCES: 1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords 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 oflimitations if the ABCMR determines it would be in the interest of justice to do so. 2.AR 635-200 sets forth the basic policy for the separation of enlisted personnel. a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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. 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. 3. AR 635-206 provided for the elimination of enlisted personnel when they were initially convicted by civil court or adjudged youth offender. Discharge may be ordered, without authorization from the Department of the Army, provided the individual is physically in the custody of the civil authorities as the time the discharge action was initiated. a. The words "initially convicted or adjudged youthful offender" will be construed to mean an adjudication of guilt of an offense by a court of competent jurisdiction without regard to whether a sentence has been imposed or suspended. Discharge or recommendations for discharge will not be effected or submitted until the individual has indicated in writing he does not intend to appeal the conviction, or until the time in which an appeal may be taken as expired, whichever is earlier, or if an appeal has been taken, until final action has been taken thereof. b. An individual who has been initially convicted and sentenced to death, or to confinement for more than 6 months, or regardless, of actual sentence to confinement is convicted for the commission of an offense for which a sentence to confinement in excess of 6 months is authorized by the Table of Maximum Punishments, Manual for Courts-Martial, 1951 will be considered for discharge. c. Transcripts from records of civil courts need not accompany recommendations for the discharge of individuals under the designated discharge authority. A statement from the court to the effect that the individual has been initially convicted or adjudged a youthful offender is sufficient. d. An individual who is to be discharged under this section will be given an undesirable certificate of discharge. 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. //NOTHING FOLLOWS//