ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 12 July 2019 DOCKET NUMBER: AR20190005401 APPLICANT REQUESTS: The applicant requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 20 November 1973 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 * DD Forms 214 (x2) * General Orders 584 (Purple Heart) 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 he believes he was treated unjustly. He served his country with honor and pride and he never received any type of disciplinary actions during either of his enlistments. a. He was passed over for promotion even though he had more points, more time in service, a combat tour in Viet Nam, and a Purple Heart. When he asked for an explanation he was told the Army was in transition, more minorities were being promoted. He worked hard for and when he expressed how he felt he was threatened with an Article 15. He was disappointed with the Army and requested a discharge. He felt that he had worked hard preparing for his career for nothing. Again, he asked for a discharge and h was told to take some time and think about it. He was given a 5 day pass. He went home and he was assaulted with a baseball bat and he was hospitalized in Greensborough, NC for 3 weeks. Then he was moved to Fort Bragg, NC, where he was hospitalized for 5 weeks. He repeatedly requested a discharge and he was put in a restricted area until he was discharged. During this period of time he was not in a good state of mind. He had lots of problems mentally and physically. b. He tried numerous times to get a copy of his second discharge over the past 45 years, he finally received a copy in 2018. This is when he saw that he was issued an under other than honorable conditions discharge. 3. He served in the Regular Army (RA) honorably from 29 September 1969 to 9 April 1972. His records show he served in the Republic of Vietnam from 3 March 1970 through 22 January 1971. He was issued a DD Form 214 for this period of service that shows he was awarded the Vietnam Service Medal, Purple Heart, Vietnam Campaign Medal with two bronze service stars, Sharpshooter Marksmanship Qualification Badge Rifle (M-14), and Marksman Marksmanship Qualification Badge Rifle (M-16). 4. On 21 December 1972, he reentered the RA for 3 years in pay grade E-4, and he held military occupational specialty 94B (Cook). On 3 February 1972, he was assigned to Fort Leonard Wood, MO. 5. On 26 June 1973, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for operating a passenger vehicle while drunk in a reckless manner. His punishment consisted of a forfeiture of pay, extra duty and restriction. 6. The applicant left his unit at Fort Leonard Wood, in an absent without leave (AWOL) status from on or about 1 July to 22 September 1973 until he returned to military authorities at the Personnel Control Facility, Fort Bragg. On 25 September 1973, court- martial charges were preferred against the applicant for this period of AWOL. 7. On 27 September 1973, 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 consult with counsel prior to making his request. He indicated he was submitting a statement in his own behalf, it states: a. He came into the Army very young, he served one tour in Viet Nam and he was discharged. He came back into the Army 8 months later. That was a big mistake, because it was a spare of the moment decision. b. He had served 7 months and he was trying to make the best of it, but he was miserable. If he were to stay in, he did not believe he would be able to perform his duties to the best of his ability. He did not want to be in the Army. 8. The applicant's commander and intermediate commander recommended the applicant's request for discharge be approved. His commander recommended that he be issued an Undesirable Discharge Certificate. However, his intermediate commander recommend he receive a General Discharge Certificate. 9. On 2 November 1973, the Staff Judge Advocate recommended the applicants separation with a general discharge. 10. The court-martial authority approved the applicant's voluntary request for discharge, directed that he be reduced to pay grade of E-1, and the issuance of a General Discharge Certificate. 11. Headquarters command, XVIII, Airborne Corps, Fort Bragg, published Unit Orders 90, dated 12 November 1973, reducing the applicant from specialist four/E-4, effective 7 November 1973, due to discharge under the provisions of AR 635-200. 12. On 20 November 1973, 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 8 months and 22 days of active service that was characterized as under conditions other than honorable. He also had 68 days of lost time. His awards are listed as: The National Defense Service Medal, Vietnam Campaign Medal with 1960 Device, and Vietnam Service Medal. 13. Chapter 10, 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. 14. General Orders 584 published by Headquarters, I Field Force Vietnam confirming he was awarded the Purple Heart for wounds received in action on 3 May 1970. 15. The applicant contends he was treated unjustly. He served his country with honor and pride and he never received any type of disciplinary actions during either of his enlistments. Additionally, he states he was passed over for promotion even though he had more points, more time in service, a combat tour in Viet Nam, and a Purple Heart. He also contends after his second period of service he was not in a good state of mind. He had lots of problems mentally and physically. 16. The available evidence confirms he completed a period of honorable service. During the period of service under review, he received nonjudicial punishment for driving reckless while drunk and he left his unit in an AWOL status from 1 July to 22 September 1973, as such, charges were preferred against him and he voluntarily requested discharge to avoid a trial by court-martial. 17. In reaching its determination, the Board can consider the applicant’s petition, which includes, an honorable period of service, a combat tour in Viet Nam, a Purple Heart, and that the approving authority approved the issuance of a general discharge and he was issued an under other than honorable conditions discharge, in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting evidence, the Board found that full relief was warranted. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found the statement and evidence of honorable service, in the form of one prior honorable discharge and honorable service as a combat veteran in Vietnam, to be compelling. The Board agreed that the applicant’s case warrants clemency in that the applicant’s honorable prior service and honorable wartime service have mitigated the misconduct resulting in the discharge characterization. 2. During deliberations, the Board found evidence that the applicant’s DD Form 214s were missing important information about the applicant’s wartime service. a. The evidence of record shows the applicant was awarded the Purple Heart Medal. DD Form 214 effective 9 April 1972 shows Purple Heart and this award is annotated along with combat wound on his DA Form 20 (Enlisted Qualification Record), but was omitted from his DD Form 214 effective 20 November 1973. a. The evidence confirms the applicant served a qualifying period of service for entitlement to the VSM. He also participated in three campaigns during his service in Vietnam, thus he is entitled to three bronze service stars to be affixed to his VSM. The additional campaigns are not listed on his DD Form 214. c. The evidence of record shows the applicant was assigned in Vietnam during a period for which his unit was awarded the RVN Gallantry Cross with Palm Unit Citation. This award is not listed on his DD form 214. b. The evidence of record confirms he served honorably during the period 29 September 1969 to 9 April 1972. His record does not contain any information that would have precluded him from being recommended for or awarded the AGCM (1st Award), and he was honorably released from active duty. 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: 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: 1. awarding him the Army Good Conduct Medal (AGCM) (1st Award) for the period 29 September 1969 to 9 April 1972, and 2. correcting his DD Form 214 with effective date 20 November 1973 by amending: (a) item 9c (Authority and Reason) “AR 635-200, para 5-14, SPD JND”, vice “AR 635-200, SPD 246,” (b) item 9e (Character of Service): “Honorable” vice “Under Other Than Honorable Conditions,” (c) item 9e (Reenlistment Code): “RE-1” vice “RE-3,” (d) item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) as follows: (1) add Purple Heart, (2) add the AGCM (3) delete “Vietnam Service Medal” and add “Vietnam Service Medal with three Bronze Service Stars,” and (4) delete “Vietnam Campaign Medal” and add “Vietnam Campaign Medal with Device (1960), (5) add Republic of Vietnam Gallantry Cross with Palm Unit Citation. 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): Not Applicable 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. 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. 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. 4. Army Regulation 600-8-22 (Military Awards) states: a. The VSM is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973. Qualifying service included attachment to or assignment for one or more days with an organization participating in or directly supporting military operations. This same regulation states, a bronze service star is authorized with the VSM award for each Vietnam campaign a member is credited with participating in. Paragraph 8 (Campaign participation credits) shows that during his service in Vietnam, participation credit was awarded for the following three campaigns: (1) Vietnam Winter-Spring 1970 Campaign (1 November 1969 – 30 April 1970) (2) DA Sanctuary Counteroffensive Campaign (1 May 1970 – 30 June 1970) (3) Vietnam Counteroffensive, Phase VII Campaign (1 July 1970 – 30 June 1971) b. The VCM with Device (1960) was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam for 6 months during the period 1 March 1961 through 28 March 1973. Qualifying service outside the geographical limits of the RVN required that the individual contributed direct combat support to the RVN and Armed Forces for 6 months. 2. Department of the Army General Orders (DAGO) Number 54, dated 1974, awarded the RVN Gallantry Cross with Palm Unit Citation to the 1st Battalion, 50th Infantry Division, and its subordinate units during the period 1 August 1965 to 16 April 1971 and to 2nd Battalion, 17th Artillery and its subordinate units during the period 1 August 1965 to 16 April 1971. Service members are authorized one award per DAGO number covering the same dates. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190005401 4 1