ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 September 2019 DOCKET NUMBER: AR20190006442 APPLICANT REQUESTS: in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show an honorable character of service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) letter FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 he believes his records inaccurately show his character of service as under other than honorable conditions; the VA finally noticed the mistake and, from what he understands, he is now required to submit this form in order to correct his records. 3. The applicant provides a VA letter, dated 13 December 2018, which essentially states the evidence indicates his service, ending on 30 November 1982, was characterized by the Army as under other than honorable conditions. Based on the VA's evaluation of the surrounding facts and circumstances, the VA will consider the applicant's discharge to be honorable, for VA purposes. 4. The applicant's service records show: a. The applicant was inducted into the Army of the United States on 20 March 1967. While in initial training, the applicant accepted nonjudicial punishment (NJP) for stealing another Soldier's camera, valued at $16. b. On completion of initial training, orders transferred him to Vietnam, and he arrived on 29 October 1967; during his Vietnam service, he was assigned to the 1st Engineer Battalion. Effective 27 February 1968, his chain of command promoted him to specialist four (SP4)/E-4. c. On 20 July 1968, he accepted NJP for falling asleep while performing sentinel duties; punishment included reduction to private first class/E-3. d. On or about 28 October 1968, the applicant completed his tour in Vietnam; on 29 October 1968, he was honorably released from active duty. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal with Device (1960). e. The applicant's service record includes a DA Form 20 (Enlisted Qualification Record), which shows, during his service in Vietnam, his unit rated his conduct and efficiency as "Fair." f. Effective 1 March 1973, and per U.S. Army Reserve (USAR) Components Personnel and Administration Letter Orders, the applicant was honorably discharged from the USAR due to the completion of his obligated service. f. On 23 July 1977, he reenlisted into the USAR for 1 year; on 19 December 1978, he was honorably discharged from the USAR Ready Reserve. On 20 December 1978, he enlisted into the USAR Delayed Entry Program (DEP) for the purpose of subsequently entering the Regular Army (RA); effective 1 February 1979, he entered active duty in the RA for a 4-year term. g. The applicant underwent basic combat training (BCT) at Fort Dix, NJ; on 22 March 1979, while in BCT, his drill sergeant wrote the applicant a letter of congratulations for his achievements as a platoon guide. Following initial training, orders assigned him to Fort Hood, TX; he arrived on or about 6 July 1979. h. Between November 1979 and April 1981, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on two occasions: * 26 November 1979 – for failing to be at his appointed place of duty at the time prescribed * 3 April 1981 – for operating a truck while drunk i. Effective 24 August 1981, his chain of command promoted him to sergeant (SGT)/E-5. In or around October 1981, orders reassigned him to Germany; he arrived on 20 November 1981. On 5 March 1982, Permanent Orders (PO) awarded him the Army Good Conduct Medal (1st Award) for the period 1 February 1979 through 31 January 1982. j. On 9 September 1982, the applicant's unit in Germany reported his duty status as ordinary leave; on 11 September 1982, this status changed to absent without leave (AWOL) when he failed to return from leave. Effective 11 October 1982, his unit dropped him from Army rolls. k. On 12 October 1982, the applicant surrendered himself to military authority at Fort Sam Houston, TX; effective 21 October 1982, he was transferred to the U.S. Army Personnel Control Facility (PCF) at Fort Sill, OK. On 26 October 1982, his PCF commander preferred court-martial charges against him for AWOL from 11 September until 12 October 1982 (31 days). l. On 27 October 1982, after consulting with counsel, the applicant requested discharge in-lieu of trial by court-martial under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he affirmed no one subjected him to coercion and his counsel had advised him of the implications of his request; he further acknowledged he was guilty of the charge. He elected not to submit a statement in his own behalf. m. The applicant's PCF commander recommended approval of the applicant's request. The commander noted the applicant said he went AWOL for personal reasons; the applicant further stated he had become disillusioned with the military. n. On 16 November 1982, the separation authority approved the applicant's separation request and directed his under other than honorable conditions discharge; in addition, the separation authority ordered the applicant's reduction in rank from SGT to private/E-1. On 30 November 1982, the applicant was discharged accordingly; his DD Form 214 shows he completed 3 years, 8 months, and 14 days of his 4-year enlistment contract; he had lost time from 11 September to 26 October 1982. The applicant was awarded or authorized: * National Defense Service Medal * Vietnam Service Medal * Army Service Ribbon * Overseas Service Ribbon * Army Good Conduct Medal (1st Award) 5. The applicant essentially states the VA characterized his service as honorable, and he requests the Army to correct his records accordingly. a. Per the Manual for Courts-Martial that was in effect at the time, the maximum punishment for AWOL in excess of 30 days included a punitive discharge; Soldiers charged with UCMJ violations, for which a punitive discharge was a punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and offered in-lieu of trial by court-martial. b. Regarding the VA's determination on his character of service: (1) Because Army and the VA operate under separate provisions of Federal law (Title 10 for the Army and Title 38 for VA), VA decisions are not binding on the Army, and its findings do not automatically require the Army to make changes in an applicant's records. (2) The ABCMR decides cases based on the evidence presented in the applicant's service records and any independent evidence submitted with the application. An applicant bears the burden of proving the occurrence of an error or injustice. However, in reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, and in addition to the administrative notes below the signature, the Board determined that there is sufficient evidence to grant partial relief to upgrade the applicant’s discharge to general under honorable conditions. 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, the applicant’s combat service, Army Good Conduct Medal, and evidence of honorable service prior to the misconduct to be compelling. The Board agreed that the applicant’s case warrants clemency in that the applicant’s prior honorable service and combat service post-service have partially mitigated the misconduct resulting in the discharge characterization. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: In addition to the administrative notes below the signature, 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing the discharge characterization of service on the applicant’s DD Form 214 ending 82-11- 30 to General under Honorable Conditions. 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 upgrading the characterization of his discharge to Honorable. 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): 1. AR 635-5 (Separation Documents), in effect at the time, prescribed policies and procedures for the preparation of DD Forms 214. It stated the DD form 214 was the most vital document a separating Soldier would receive; as such, it was of paramount importance that the information be complete, accurate, and in accordance with authorized entries. a. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) was to list awards and decorations given during the Soldier's entire military service. b. Versions of AR 635-5 that were current during the Vietnam War required the remarks section to include Vietnam service periods. 2. AR 600-8-22 states a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign. Recognized campaigns for Vietnam include: * Vietnam Counteroffensive, Phase III (1 June 1967 to 29 January 1968) * Tet Counteroffensive (30 January 1968 to 1 April 1968) * Vietnam Counteroffensive, Phase IV (2 April 1968 to 30 June 1968) * Vietnam Counteroffensive, Phase V (1 July 1968 to 1 November 1968) 3. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows: a. Department of the Army General Orders (DAGO) Number 28, dated 1969, awarded the Meritorious Unit Citation to the 1st Engineer Battalion for the period 16 May 1967 to 2 June 1968. DAGO Number 48, dated 1971, awarded the Republic of Vietnam Civil Actions Honor Medal, First Class for the period October 1965 to 7 April 1970. b. All units in Vietnam were awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on DAGO Number 8, dated 1974. 4. As a result, amend his DD Form 214, ending 30 November 1982, as follows: a. delete the Vietnam Service Medal. b. add: * Vietnam Service Medal with four bronze service stars * Meritorious Unit Citation * Republic of Vietnam Campaign Medal with Device (1960) * Republic of Vietnam Civil Actions Honor Medal, First Class * Republic of Vietnam Gallantry Cross with Palm c. In item 18 (Remarks) show "Service in Vietnam from 29 October 1967 to 28 October 1968." //NOTHING FOLLOWS// REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Paragraph 3-7b stated 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. c. Chapter 10 provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges had been preferred. A discharge under other than honorable conditions was normally considered appropriate. 3. AR 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Paragraph 8-11 (Approved for Discharge from Service Under Other Than Honorable Conditions) stated commanders could reduce Soldiers discharged under other than honorable conditions to the lowest enlisted grade. 4. The Table of Maximum Punishment in the Manual for Courts-Martial, in effect at the time, showed the punishment for violation of Article 86 (AWOL for more than 30 days) included a punitive 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 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. 6. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. It states the ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. An applicant bears the burden of proving by the preponderance of evidence that an error or injustice have occurred. 7. AR 672-5-1 (Awards), in effect at the time, stated the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active duty service, completed on or after 27 August 1940. For first award only, Soldiers who had served less than 3, but more than 1 year could also receive the award. The Soldier had to have all “excellent” conduct and efficiency ratings. ABCMR Record of Proceedings (cont) AR20190006442 7 1