IN THE CASE OF: BOARD DATE: 17 March 2015 DOCKET NUMBER: AR20140014335 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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) as follows: * change his lost time from 35 days to 111 days * change his rank/grade from specialist four (SP4)/E-4 to sergeant (SGT)/ E-5 2. The applicant states: a. The error of injustice in his record was the enlisted rank of E-1. He should have departed military service not less than an E-4 or an E-5. These are the facts when he volunteered for Vietnam. His company was given an empty space inside Ton Son Nhut Air Base. They had no living quarters, office space, or motor pool area. As a master carpenter he was assigned the task of building quarters. His military occupational specialty (MOS) was Ordnance Supply Records Clerk. During his first tour of duty a group of Army, Air Force, and Navy personnel wanted to bring American entertainment to their area. He wanted to be one of the singers. However, his ability to sing was "completely nil." He could not carry a tune in a bucket or hold a note with a pair of vice grips. He became the M.C. and comedian. b. Each of them had a letter or permission from their commanding officers. In his case, it was a letter of permission from the colonel of the 69th Signal Battalion. Other personnel had similar letters to work after duty in the enlisted men's club, officers club, etc. His group was a five-man singing group known as the "Shades of Soul" and the band was the "Soultations." It included a sergeant who did a James Brown imitation, an Afro-Cuban dancer, and a nurse who sang the top ten women's songs in the United States. These records were mailed to him from a Houston, TX record shop. He was praised for his work. Then the one record in America was James Brown's "Say It Loud, I'm Black and Proud." The band would play the music, but everyone was afraid to sing the song. c. This was during his second tour of duty in Vietnam. He was working at the Military Assistance Command - Vietnam (MACV) at the time when several things happened before his honorable discharge. After he sang James Brown's number 1 hit, a fight started in the enlisted club. The colonel charged him with inciting a riot, lowered (busted) him to an E-3, and restricted him to Ton Son Nhut Air Base. The colonel would not allow them to rehearse on base or store their band equipment there. They rented a villa outside Ton Son Nhot Air Base for storage and rehearsals. One of the sergeants from the motor pool signed a 2 1/2- ton truck and brought the band equipment on Ton Son Nhut Air Base. He met the truck at the main gate. Someone saw him on the truck and told the colonel he broke restriction. He was restricted to Ton Son Nhut 69th Signal Battalion. Once again the colonel reduced him from E-3 to E-2. He was still working in the same position and the colonel kept him there because he did such a great job even though the colonel believed he was different (a militant), whatever that was. On 4 April “1969”, the teletype printed a message that stated "All American flags in the United States and Abroad will be flown at half staff for 30 days in observance of the assassination of the Reverend Dr. Martin Luther King, Jr., by Signed Richard M. Nixon, Command in Chief." d. He brought the message to his section leader who directed him to the captain and the captain directed him to the colonel. The colonel told him he was not flying the flag at half staff and to go tell the chaplain. The chaplain said that he was a captain and he could not override the colonel. He was not only the supply clerk but also the armorer. He and another specialist put his M-60 Machine Gun and his .45 Caliber pistol on their sides and drove thirty (30) miles north to Long Binh Post. There, he spoke with the general at Long Binh Post. Before entering the base, the American flag was quite visible and at half staff. The general told him when he got back to Saigon, if the flag was not at half staff, not to return to Long Binh; instead, he gave him his personal telephone number to call him immediately. When he returned to the 69th Signal Battalion the military police told him to report to the colonel. Everyone said the colonel was angry, but the flag was at half staff. He was held for an investigation although he had been "honorably discharged." He was finally charged with fraud. e. The money orders he was sending home to his wife and children had a section that read, "Are you sending home more money then you make in the military." There was a "Yes" and "No" box. He inadvertently checked the "No" box. He could not send more money home than he earned because he had to pay for their rehearsal space and storage area for their equipment. The fraud was supposed to be that he lied on the money order form. He told the truth. He was court-martialed and sent to the stockade (Long Binh Jail). The captain refused to accept him because he (the applicant) was out of the Army and was honorably discharged. For 90 days he was brought to Long Binh Stockade and returned to the 69th Signal Battalion. After 3 months the captain told him this could last until the war was over. But, if he would sign himself into Long Binh Jail his papers would be sent to the Pentagon and in 21 days he would be sent home. Twenty-one days later, he was sent home. f. He was never debriefed into civilian life. He is still trying to adjust to civilian life to this day. There was a number on his discharge papers, a code number and for years he attempted to learn what the code meant. When he was a student at Xavier University in New Orleans, LA he worked at the Veterans Administration (VA) as a work study student. It was then he learned what the code meant: Unable to adjust to military life. Adjusting to military life had been his life from a child. He was raised in foster homes from a very young child. These homes were operated military style, they even wore old military uniforms. In these homes they were beaten, and were neither fed enough nor allowed to do simple childhood things. The military did not beat them; they were fed very well and compensated. It was as though he had gone to heaven and did not have to die. His plans were to become a career military officer and serve a minimum of 30 years. He did not want out of the Army. He wanted to get away from a racist colonel who used his rank for personal revenge. g. He thinks his case should be favorably corrected because for 45 years he tried to get a DD Form 149 (Application for Correction of Military Records) to file his claim properly. In New Orleans, no one had any knowledge of how to assist him, so they said. After being evacuated from New Orleans in September 2005 following Hurricane Katrina, he and his wife plus the vast majority of New Orleans residents were deposited in EI Paso, TX. He became familiar with the VA facility in EI Paso to find the same inept treatment he received in New Orleans. Finally he was introduced to a Vietnam veteran, Mr. S. Flores, and he gave him the application needed to correct his discharge papers. In short he was a POW BFF (Prisoner of War by Friendly Forces). In the interest of justice he should be considered because each time he tried to get justice, he was told he was "Rocking the Boat." How does he explain to his family that he went into the Army an E-1, went to war twice, and came home an E-1? By the way, the last time his family saw him was an E-4. Financial experts say it takes $52,000 a year for a family of 2 to live. He receives only $42,000 for himself and his wife. He is struggling each day just to stay alive. He would like to entertain the men and women of the Armed Forces, but he cannot afford to pay his way. Those who entertained in Vietnam were rewarded. He wasn't given as much as a thank you. He entertained his fellow Soldiers from his heart when no one else would. 3. The applicant provides: * Congressional correspondence * DD Form 214 * DD Form 215 (Correction to DD Form 214 (Report of Separation from Active Duty) * Photograph 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's records show he enlisted in the Regular Army for a period of 3 years on 15 December 1966. His expiration term of service (ETS) date was established as 15 December 1969. He completed basic combat and advanced individual training and he was awarded MOS 76D (Ordnance Supply and Parts Specialist). 3. He was advanced to private two (PV2)/E-2 on 15 April 1967. He served in Okinawa from 28 May 1967 to 2 November 1967. He was assigned to the 137th Ordnance Company. He was also advanced to private first class (PFC)/E-3 on 20 July 1967. 4. On 9 August 1967, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disorderly in the command. 5. On 10 October 1967, he again accepted NJP under the provisions of Article 15 of the UCMJ for assaulting another Soldier by striking him with his fist. His punishment consisted of a reduction to private (PV2)/E-2, a forfeiture of pay, and 14 days of extra duty and restriction. 6. He served in Vietnam from 8 January 1968 to 27 October 1969. He was assigned to Headquarters and Headquarters Company, 69th Signal Battalion from 9 January to 31 October 1968 (he was transferred to another unit in Vietnam). He was advanced back to PFC/E-3 on 17 January 1968. 7. On 10 April 1968, he accepted NJP under the provisions of Article 15 of the UCMJ for behaving with disrespect toward his commanding officer. His punishment consisted of 14 days of extra duty and restriction. 8. Unit Orders Number 34, issued by Headquarters, 69th Signal Battalion, on 12 April 1968, appointed him to the temporary (T) rank/grade of SP4/E-4. 9. On 28 June 1968, he again accepted NJP under the provisions of Article 15 of the UCMJ for being disrespectful in language towards a commissioned officer. His punishment consisted of a reduction to PFC/E-3 (suspended for 60 days), a forfeiture of pay, and 14 days of extra duty and restriction. 10. On 1 November 1968, he was reassigned to the 593rd Signal Company and served in MOS 76Y (Unit Supply Specialist). He remained with this unit until he left Vietnam. 11. On 4 February 1969, his commanding officer recommended him for promotion to specialist five (SP5)/E-5. 12. On 14 February 1969, he appeared before the 69th Signal Battalion E-5 Promotion Board. However, he was not selected for promotion by a majority of the promotion board. 13. On 9 August 1969, he accepted NJP under the provisions of Article 15 of the UCMJ for operating a military vehicle in a reckless manner, being disrespectful toward a superior noncommissioned officer, and wrongfully communicating a threat to two sergeants. His punishment consisted of a reduction to the lowest enlisted grade of E-1, a forfeiture of pay for 2 months, and 60 days of restriction. 14. Special Orders (SO) Number 201, issued by Headquarters, 69th Signal Battalion, on 9 August 1969, reduced him to PVT/E-1. 15. On 22 September 1969, he was convicted by a special court-martial of four specifications of making a false official statement with intent to deceive and one specification of breaking restriction. The court sentenced him to confinement at hard labor for 2 months and a forfeiture of pay for 6 months. The convening authority approved the sentence on 10 October 1969. 16. He was confined from 22 September 1969 (date of his conviction) to 26 October 1969 (date before his punishment was suspended), a total of 35 days. 17. Special Court-Martial Order Number 360, issued by Headquarters, 18th Military Police Command, Vietnam on 27 October 1969, shows effective 27 October 1969, the unexecuted portion of the sentence to confinement at hard labor for 2 months was suspended until 17 November 1969 at which time, unless the suspension is sooner vacated, the suspended portion will be remitted. 18. He departed Vietnam on 27 October 1969 enroute to the U.S. Army Personnel Center, Oakland, CA. He was honorably released from active duty as an overseas returnee (Separation Program Number 411) on 28 October 1969. His DD Form 214 shows he completed 2 years, 9 months, and 9 days. It also shows in: * Item 5a (Grade, Rate or Rank), PVT Permanent (P) * Item 5b (Pay Grade), E-1 * Item 6 (Date of Rank), 9 August 1969 * Item 30 (Remarks), 35 days of lost time, from 22 September to 26 October 1969 19. There is no indication in his records that he completed his 3-year commitment or was honorably discharged at the time of his acceptance of NJP or at the time of his court-martial conviction. 20. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel. Chapter 7 contained Army-wide promotion policy and procedures. It stated, in part, that the promotion of enlisted personnel, appointments, grade reductions, and grade restoration were announced in orders. 21. Army Regulation 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of their military service. Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214. The version of the regulation in effect at the time stated: a. Items 5a and 5b will show the active duty rank and pay grade at the time of the Soldier's separation; the rank is taken from the Soldier’s promotion/ reduction orders; and item 6 shows the date of rank. b. Item 30 shows mandatory entries. One of those entries pertained to time lost under Title 10, U.S. Code, section 972. The regulation requires that the dates of time lost during the current enlistment will be entered on the DD Form 214. For enlisted personnel, the inclusive periods of time lost to be made good under Title 10, U.S. Code, section 972, and periods of non-inclusive time after ETS will be entered. Time lost under Title 10, U.S. Code, section 972, is not creditable service for pay, retirement, or veterans' benefits; however the Army preserves a record of it (even after it has been made up) to explain which service between the date of entry on active duty and the date of separation is creditable service. DISCUSSION AND CONCLUSIONS: 1. With respect to the rank/grade: a. The evidence of record shows the applicant was advanced to the temporary rank/grade of SP4/E-4 on 12 April 1968. He also appeared before the battalion's E-5 promotion board, but he was not recommended for promotion. Therefore, his name was never added to the promotion standing list and he could not be advanced to pay grade E-5. b. He then accepted NJP under the provisions of Article 15 of the UCMJ for misconduct. This resulted in his reduction to the lowest enlisted rank/grade of PVT/E-1 on 9 August 1969. He held this rank/grade at the time of separation. c. There is no evidence in his records and he provides none to show he was advanced above the rank/grade of PVT/E-1 between the date of his last reduction and the date of separation. Therefore, he is not entitled to correction of his DD Form 214 to show a different rank/grade. 2. With respect to the lost time: a. The applicant was convicted by a special court-martial on 22 September 1969 of various specifications of misconduct and/or violations of the UCMJ. The court sentenced him to confinement at hard labor for 2 months in addition to a forfeiture of pay. The convening authority then suspended his sentence on 27 October 1969. He was thus confined from 22 September to 26 October 1969, a total of 35 days. b. By law and regulation, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits. The lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up. Not only is there no evidence that he made up this lost time, even if he did so, the requirement to list the lost time on the DD Form 214 remains a valid requirement. 3. After a review of the applicant's records and in view of the foregoing, his DD Form 214 is correct and requires no correction. He is not entitled to any of the requested relief. BOARD VOTE: ________ ________ ________ 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ____________X____________ 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) AR20140014335 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140014335 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1