IN THE CASE OF: BOARD DATE: 15 October 2008 DOCKET NUMBER: AR20080011661 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his bad conduct discharge be upgraded to a general discharge under honorable conditions. 2. The applicant states that he served his entire active duty in combat. He went home to take care of his family. He apologizes for his actions. He was very young. He was very depressed and confused while in the Army. Due to his injuries, he was confused and made an irrational decision about serving the remaining six months. He wanted to be near his family. He has been a productive citizen in society. He needs the upgrade to get medical treatment and to obtain a job. 3. The applicant provides a letter, dated 20 June 2008, from the Review Boards Agency; a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States); a letter, dated 28 September 2007, from the National Personnel Records Center; a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim); a statement from his brother-in-law, dated 5 June 2008; and a statement from his daughter, dated 30 May 2008. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was born on 26 September 1950. He was inducted into the Army on 2 February 1970. He completed basic combat training and advanced individual training and was awarded military occupational specialty 11E (Armor Crewman). 3. The applicant arrived in Vietnam and was assigned to Troop L, 3d Squadron, 11th Armored Cavalry Regiment on 7 July 1970. 4. A U. S. Army Vietnam Form 130 (U. S. Army Vietnam Casualty Report Format) shows that the applicant received fragment wounds to his back when he was a member of a dismounted patrol “on an ACAV when vehicle hit land mine” on 16 August 1970. Orders dated 15 September 1970 awarded him the Purple Heart for the injuries he received on 16 August 1970. The applicant’s service medical records documenting these injuries are not available. 5. Orders, dated 8 January 1971, awarded the applicant the Army Commendation Medal for meritorious achievement for the period 1 August to 1 December 1970. 6. On 26 February 1971, the applicant indicated that he desired to be admitted for hospitalization under the amnesty program. He stated he had been using heroin about 4 months. A Standard Form 600 (Chronological Record of Medical Care) prepared at the same time indicated he had a small laceration to the back side of his head which had two sutures. 7. On 3 May 1971, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice, for missing mandatory formation. 8. On 24 June 1971, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice, for failing to obey a lawful order and for twice failing to go to his appointed place of duty. 9. On 4 July 1971, the applicant was hospitalized from the 22d Replacement Battalion for improper use of heroin. He was released on 7 July 1971 and departed Vietnam shortly thereafter en route to Fort Lewis, WA. 10. Item 38 (Record of Assignments) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows he received conduct and efficiency ratings of “satisfactory” for the period 19 February 1971 through 2 July 1971. His prior ratings had been “excellent.” 11. On or about 3 August 1971, the applicant requested extension of his leave. A 17-day extension of his leave was granted. 12. On 8 April 1974, the applicant was convicted, contrary to his pleas, by a general court-martial of being absent without leave (AWOL) from on or about 20 August 1971 to on or about 31 January 1974. He was sentenced to a bad conduct discharge, to be confined at hard labor for seven months, to forfeit $150.00 pay per month for seven months, and to be reduced to the rank and grade of Private, E-1. The execution of the sentence adjudging confinement at hard labor in excess of six months and forfeitures of $150.00 pay per month in excess of six months was suspended until 3 November 1973. 13. On 22 August 1974, the unexecuted portion of the applicant’s sentence to confinement was suspended for two months at which time, unless the suspension was sooner vacated, the unexecuted portion of the suspended sentence would be remitted without further action. 14. On 23 August 1974, the applicant was placed on excess leave pending appellate review. 15. The appellate action is not available. Headquarters, U. S. Disciplinary Barracks General Court-Martial Order Number 584, dated 9 June 1975, indicated that the applicant’s sentence had been affirmed. 16. On 26 June 1975, the applicant was discharged, with a bad conduct discharge, pursuant to his conviction by court-martial. He had completed 2 years, 4 months, and 16 days of creditable active service and had 412 days of lost time. His DD Form 214 (Report of Separation from Active Duty) listed his character of service as “UNDER OTHER THAN HONORBLE CONDITIONS) but also showed that he was issued a DD Form 259A (Bad Conduct Discharge Certificate). 17. In support of his application, the applicant provided a letter of support from his brother-in-law. His brother-in-law stated that he has been the applicant’s brother-in-law for the past 25 years. He served in the U. S. Air Force in Vietnam as a combat paramedic on rescue helicopters. Nearly every survivor he recovered was already displaying symptoms of (what is now known to be) post-traumatic stress disorder (PTSD). He suspected the applicant was suffering from PTSD from the very first day he met him. Yes, the applicant was already drinking heavily; yet, he was a highly-respected construction worker. Still, it was obvious he was still confused and suffering from his wounds from Vietnam, both physical and emotional. 18. The applicant’s brother-in-law stated that the government finally admitted that it had caused the numerous medical ailments that were experienced by many Vietnam veterans due to exposure to Agent Orange. However, the applicant stubbornly refused to request any assistance. He got worse. He got divorced and moved to Florida. He had steady work for a while but eventually his seizures caused his employers to let him go. The seizures might certainly be caused by alcohol use, but they could also be brought on by other causes. In addition to being continually sprayed by Agent Orange, the seizures could have been caused by the injuries he received while in combat. It was, after all, a head injury. He was in a tank with three other Soldiers when the tank received a direct hit. The applicant received a severe wound to the front of his head and shrapnel in his back and his ear drums were ruptured. 19. The applicant’s brother-in-law stated that the applicant’s military problems began once he finished his tour and returned to the States. All he had to do at the end of his leave was to serve out his final six months in a comfortable Stateside assignment. However, he was having nightmares about his buddies being blown apart in his tank. In his suffering and confused state, he went back to his hometown and attempted to return to his previous life and get through his nightmares. The President gave all defectors immunity from any civil punishment and used his “Executive Privilege” to allow them to return to the country. Even though they had broken federal laws, their records were cleaned. Yet, the applicant’s life has been ruined. 20. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 21. Army Regulation 635-200 governs the separation of enlisted personnel. Paragraph 3-7b provides that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. It is acknowledged that the applicant completed his tour in Vietnam, earning a Purple Heart and an Army Commendation Medal. 2. The applicant’s combat injuries incurred in Vietnam have been noted, although the evidence of record provides different details than those mentioned in the letter from his brother-in-law (there is no available evidence of a head injury on 16 August 1970, and he was outside the vehicle on a dismounted patrol, not inside the vehicle). 3. It is also noted that twice the applicant accepted non-judicial punishment while in Vietnam, that twice he was hospitalized for heroin use, and that during the second half of his Vietnam tour his conduct and efficiency were rated as “satisfactory.” 4. Discharges are not upgraded solely to allow an individual to obtain employment and are normally not upgraded to allow an individual to obtain medical benefits. Considering the applicant’s Purple Heart, he might be able to request medical care from the VA as an exception to policy; however, the decision to allow it or not would be a VA decision. 5. In accordance with Title 10, United States Code, section 1552, the ABCMR is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. 6. It is acknowledged that the evidence of record indicated the applicant’s misconduct started after he was wounded in action. However, there is no evidence, and the applicant provides no evidence, to show that his experiences in combat directly resulted in his use of heroin rather than that his heroin use started simply because of the easy availability of drugs in Vietnam. It cannot be determined if his misconduct after he returned to the States (i.e., his AWOL) was the result of PTSD or incipient PTSD or was the result of a continuation of his earlier misconduct (i.e., drug abuse). Therefore, there is an insufficient basis that might warrant upgrading his discharge based upon clemency. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____XX____ ____XX____ ___XX_____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ XXXX_ _______ ___ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20080011661 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080011661 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1