ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 October 2019 DOCKET NUMBER: AR20190006405 APPLICANT REQUESTS: an upgrade of his other than honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Timeline of events * Character reference * Personal statement * VA Form 21-4138 (Statement in Support of Claim) * 2 DD Form 214 (Armed force of the United States Report of Transfer or Discharge) * WD AGO Form 53 (Enlisted Record and Report of Separation, Honorable Discharge) * Excerpts of his DA Form 24 (Service Record) * Letter from the Department of Veteran Affairs (VA) * Letter from the Department of the Army * Document titled "Security Information" * Form 1411-3 (Army Nuclear Personnel Review) * Personnel roster * Affidavit by unknown person * Excerpts of book title "Tiger Hunters" * Personal letter * Letter to Adjutant General from applicant’s mother * Article titled “Incredible Planet” 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 (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. He suffered from post-traumatic stress disorder (PTSD) throughout his last tour of duty. Records reflect his three separate and distinct periods of military service. His last period of service is the one he requests an upgraded for. He served the U.S. Army honorably for over 3 years during wartime. It was an extremely hostile environment and everything had been blown up and destroyed. There was starvation and disease everywhere. Upon returning to the U.S., he was assigned to the 505th Military Police unit and was sent to Desert Rock, Nevada in support of the nuclear testing operation titled "Buster-Jangles." He and several hundred other service men and women were evaluated to learn the physiological effects of a nuclear combat environment. This was a classified mission and they were told not discuss it with anyone. He is including as documentation a letter from the Department of The Army, office of the Adjutant General, stating his unit was one of the units involved in the Buster-Jangles series of nuclear tests, and copies of his personal "Army Nuclear test personnel review" records that were performed on site. b. During the second period of honorable service, he was assigned to the 8240th Army Unit. This was at the very beginning of the Korean conflict. Once again their assignments were deemed "Classified" which he took very seriously and had not been able to share with anybody. His unit's mission with the 8240th was to act as advisors and to train the South Korean and United Nations Partisan Infantry Korea (UNPIK) forces in unconventional warfare. They would cross the 381th parallel and disrupt the enemy's efforts from moving south and also run rescue missions. During one mission he, along with several other South Korean Partisan soldiers, were captured by Chinese forces and held prisoner for several weeks. After almost daily moves to new locations, they were rescued by one of their UNPIK units. These missions were declassified in the 1990's and documented in a book written by his commanding Officer. The book is titled "Tiger Hunters." His commander indicates in the book it was not unusual for their men to be captured and rescued with little or no documentation as they were the only U.S. forces operating in and out of North/South Korea at that time. c. Upon returning from Korea, he discovered his wife, mother, and most of his friends had been told he was killed in action. His wife thinking he was dead had re- married. Ultimately, thinking it would be best for his children he granted her a divorce. In his last re-enlistment, he was assigned back to South Korea where he began to drink heavily. He found himself in and out of trouble and at odds with his commanding Officers. The alcohol was the only thing that would ease his depression and the nightmares from his past experiences. He is including a letter written by his mother and sent to the Adjutant General US Army and was entered into his file in June of 1953. It shows the concern from his mother and wife, because they had not heard from him and she states that the last time she did, he was in Korea. He was only recently made aware of the letter from his mother; however, he has not been able to find a copy of his commander’s response to his mother. Her letter was written during the time of his capture. e. He has exhausted his research efforts to find corroborating efforts of his time on the Korean peninsula but he knows what he endured. VA has conceded some of his personnel records were involved in the NPRC fire of 1973. Available records were enough to substantiate, and VA has recently diagnosed, and service connected him, with PTSD with persistent depressive disorder and other substance use disorder from his periods of honorable service. f. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD, the Department of Defense has acknowledged some soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge. It may also be acknowledged this undiagnosed condition of PTSD may have been a mitigating factor in the soldier's misconduct which served as a catalyst for their discharge. g. The operations he supported with the 505th MP unit outside of Nevada, the assignments he endured while serving in the 8240th Army Unit, his return from Korea, and losing his wife and access to his children all took a toll on his mental health and well-being. Given he was recently divorced, depressed, financially strapped, and desperate drove him to misappropriating government equipment at a local pawn shop in order to support the misuse of alcohol to self-medicate. He always resolved the misappropriation on payday and returned the equipment, but only now in hindsight does he realize the seriousness of his mistake. He remarried in 1981 and with the help of his wife, he has overcome the grips of alcoholism. He will be 91 years old in September and has spent the past, almost 60 years involved with the Veterans of Foreign Wars (VFW). American Legion and AMVETS Posts in support of projects to help his fellow Veterans. He has participated in many Honor Details, Veterans Day and Prisoners of War (POW) recognition events. h. In 2015, he was accused of being an imposter, because of the bad conduct discharge and striped of his membership in The American Legion Post 63 and the VFW post 1370. It is his hope he is granted an upgrade in order to be reinstated to these posts. The applicant’s complete statement is available for the Board’s review. 3. The applicant enlisted into the Army of the United States on 5 November 1945. 4. On 12 April 1947, the applicant was charged and found guilty of willfully and wrongfully exceeding the authorized speed limit. 5. He was honorably separated on 4 November 1948, for immediate reenlistment. He was awarded or authorized the World War (WW) II Victory Medal and the WW II Occupation Medal. 6. The applicant reenlisted on 5 November 1948. 7. Special Court-Martial Orders (SCMO) Number 30, dated 3 October 1950, shows the applicant pled not guilty; however, was found guilty of violating a company standing order by leaving the company without signing out and failing to sign in when he returned. 8. SCMO Number 78, dated 10 July 1951, shows the applicant pled not guilty; however, was found guilty of without proper authority absent himself from his unit from on or about 29 May 1951 to on or about 18 June 1951. 9. He was honorably discharged on 18 February 1952, for immediate reenlistment. He reenlisted on 19 February 1952. 10. His DA Form 24 shows he served with the 505th MP Battalion from 19 February 1952 to 20 October 1952 and with the 8240th Army Unit from 5 December 1952 to 9 July 1953. 11. His DA form 24 also shows he arrived in Korea on 30 June 1957 and departed on 28 August 1958. 12. General Court-Martial Order Number 73, dated 7 June 1961, shows the applicant pled guilty and was found guilty of 5 specifications of wrongfully appropriating property of the United States. His sentence consisted of forfeiture of all pay and allowances, confinement at hard labor for 6 months, reduction to the grade of private/E-1, and a bad conduct discharge (BCD). 13. On 16 August 1961, the Board of Review having found the findings of guilty and sentence as approved by proper authority correct in law and fact and having determined, on the basis of the record, that the findings of guilty and only so much of the sentence as proving a BCD, total forfeiture, confinement at hard labor for 4 months, and reduction to the lowest pay grade should be approved the same as thus modified are hereby affirmed. 14. On 28 August 1961, he was discharged under the provisions of Army Regulation 635-204 (Personnel Separations - Dishonorable and Bad Conduct Discharges) for other than desertion (court-martial), after 9 years, 2 months and 29 days of net active service this period, with 6 years and 16 days of other service. His DD Form 214 covering this period does not reflect a BCD, but rather his service was characterized as other than honorable conditions. 15. The applicant provided: a. A “Certificate Affidavit” was submitted which indicated unit members associated with the special operations in Far East Command (FECOM) were required to not "disclose or reveal … any information … of my employment by the United Nations Partisan Infantry Korea …" The affidavit noted violating the agreement would be considered an act of espionage and punishable by death or imprisonment. The signature was redacted. b. Excerpts from ‘Tiger Hunters, Special Operations in Korea (Behind the Lines of the Chinese and North Korean Forces 1950-1953)’ were submitted supporting the lack of personnel records clarifying his mission and capture in Korea. The excerpts indicated prisoners of war were not listed on the exchange rosters and "many documents for the 8086th, 8240th Army units, and the Far East Command Liaison Group have not been declassified." c. A letter written by his mother in 1953 stated she and his wife had not heard from him since February. She noted he had been writing two to three letters a month, but they had abruptly stopped. His mother requested information on the status of her son. Included in Mr. Zimmerman’s personnel records, obtained through the National Archives and Records Administration, included the letter and a response, dated 16 June 1953, indicating he was in good health and advised to write them. The record is void of a telegram or other paperwork notifying the family he was deceased. d. An article written by the daughter of a Soldier he served with describes a reunion between the applicant and her father. The daughter noted her father believed his friend had died in Korea; he had called the applicant’s wife when he learned his friend was sent to Korea and was told the military informed the family he had died. When the two reunited, the applicant discussed being captured, witnessing the loss of others during the capture, and remaining a POW for three years 16. On 24 July 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The ARBA medical advisor states available documentation indicates the applicant was not experiencing PTSD while in-service or at the time of separation; there is no indication of a mental illness. Furthermore, VA records are void of the Compensation and Pension (C&P) exam clarifying the endorsed trauma, basis for service-connection, and symptom timeline. Irrespective, wrongfully appropriating and stealing are not part of the natural progression or normal sequela of PTSD; PTSD would not mitigate the misconduct serving as the basis for separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 17. The applicant was provided a copy of the advisory opinion on 2 August 2019 and given an opportunity to submit comments, but he did not respond. 18. Army Regulation 635-204, in effect at the time, set forth the basic authority for the separation of enlisted personnel with a dishonorable or bad conduct discharge pursuant to an approved sentence by a general court-martial or a special court- martial imposing a bad conduct discharge. 19. In reaching its determination, the Board can consider the applicant's petition, his statements, and his service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, an advisory opinion and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, his conviction by a General Court-martial and the reason for his separation. The Board considered the correspondence in his records, his statement and supporting documents regarding capture, the lack of VA records and the conclusion of the advising official regarding mitigating conditions. The Board found insufficient in- service mitigation for his misconduct and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service he received upon separation in 1961 was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. ? 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: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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 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 635-204 (Personnel Separations – Dishonorable and Bad Conduct Discharge), in effect at the time, set forth the basic authority for the separation of enlisted personnel with a dishonorable or bad conduct discharge pursuant to an approved sentence by a general court-martial or a bad conduct discharge imposed by a special court-martial. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. 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. 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 3, currently in effect, provides that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review was required to be completed and the affirmed sentence ordered duly executed. 4. 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 DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, 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, on 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. 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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) AR20190006405 7 1