RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        NOVEMBER 16, 2004
      DOCKET NUMBER:  AR2004102732


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Mr. Robert Rogers                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of the prior decisions made by
the Army Board for Correction of Military Records (ABCMR) to deny an
upgrade of his bad conduct discharge (BCD) to an honorable or a general
discharge.

2.  The applicant states that in 2002, the ABCMR corrected his Report of
Separation (DD Form 214) to reflect his combat medals; however, on 16
January 2003, the Board denied his request for a discharge upgrade
indicating that he had not provided sufficient proof that he had been
engaged in protracted combat prior to being assigned to the 229th Aviation
Battalion.  He states that the Board concluded that no evidence so far
connected his combat involvement to his conviction by a special court-
martial, which is totally incorrect.  He states that his active duty
precipitated the events causing his court-martial and his BCD.  He goes on
to state that abundant professional medical evidence shows his post
traumatic stress disorder (PTSD) originated in Vietnam and his records
confirm the medical diagnosis.  He states that PTSD had everything to do
with his actions and behaviors that led to his court-martial and BCD.

3.  The applicant states that he had nonjudicial punishment (NJP) imposed
against him twice while he was in the Army.  He states that his first NJP
was for a fistfight with a fellow soldier while training and for being in
possession of an altered military identification (ID) card.  He states that
the second time was for 6 days of being absent without leave (AWOL).  He
states that, in regard to the fistfight, he was attacked and that he was
only fighting back in self-defense.  He goes on to state that most of the
soldiers that were teenagers had altered ID cards for the purpose of
getting into nightclubs and to drink which is pretty small stuff in
comparison to serious offenses.  He states that he went AWOL because he
wanted to spend what he believed to be his last days with this family and
friends.  He states that his records reflect excellent conduct and
efficiency ratings with several combat units as he had put the Army above
his own life by saving the life of a fellow soldier and that had his
records reflected his medals and combat service at the time of the
Department of Defense (DOD) Special Discharge Review Program (SDRP), his
discharge would have been upgraded.  The applicant goes on to describe what
he contends took place while he was in Vietnam.  He states that he believes
that his punishment was too harsh considering the nature of his offenses
and that he never physically assaulted an officer and yet he was court-
martialed, imprisoned, sent to hard labor and given a BCD.  He states that
his PTSD has worsened through the years and that he has been unable to
“shake it” and that he is totally disabled and debilitated by combat
related severe chronic PTSD.

4.  The applicant provides in support of his application, a chronology of
what he believes to be error made by the Board in its decision dated 11
September 2001; a letter dated 23 December 2003, from the Otero County
Veterans’ Service Officer; electronic mail from his wife, addressed to this
Board dated 24 February 2004; a letter to this Board dated 20 April 2004,
with fifteen signatures; a letter from Department of Veterans Affairs (VA)
dated 9 January 2004; and a letter from a clinical social worker at Solis &
Associates dated 26 March 2004, all supporting his request for a discharge
upgrade and contending that he suffers from PTSD.  He also submits a
National Center for PTSD Fact Sheet; numerous pieces of documentation in
support of his combat service; documentation from numerous individuals who
contend that they served in combat with him while he was in the Army;
copies of mission statements; a letter from the United States Armed
Services Center for Unit Records Research regarding the use of Agent Orange
in Vietnam; a letter from a psychiatrist dated 29 December 2003, indicating
that he is currently receiving benefits from the Social Security
Administration for PTSD; a letter from a social worker at Solis &
Associates dated 23 December 2003, opining that he was suffering from PTSD
prior to his discharge from the Army; a letter from a Arizona state retired
registered nurse, dated 19 May 2003, opining that he suffers from PTSD as a
direct result of Vietnam conflict; a VA Statement in Support of Claim form;
letters from his father and his sister regarding his actions and state of
mind since his discharge; copies of orders and citations for his awards;
documents linking animal cruelty to human violence; VA documentation
regarding the legacy of psychological trauma of the Vietnam War for Native
Hawaiian and American of Ancestry Military Personnel; documentation
regarding Asian Americans in Vietnam War and the rude awakening to racism;
a letter from the Board for Correction of Naval Records dated 26 December
2001, informing another soldier that the recommendation that his general
discharge be upgraded to an honorable discharge was approved; copies of
another individual’s DD Form 214; an undated statement entitled “Eddie
Davis Case Summary”; a statement from his wife to his attorney; and a
statement from a captain to his attorney regarding his claim; and pictures
of his wife and himself.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant’s BCD be upgraded to an
honorable or a general discharge.




2.  Counsel states that the applicant was an unsophisticated, patriotic
Soldier from a gentle culture who was willing to die for what he believed
to be precious.  Counsel states that the applicant has some Chinese
ancestry; therefore, he was often mistaken for the enemy while he was in
Vietnam.  Counsel urges that the Board strongly consider the applicant’s
request for a discharge upgrade.

3.  Counsel provides charts and an executive summary of new evidence, which
he contends show how the Board’s earlier decisions in 2001 and 2003 were
based on insufficient facts that are now supplied.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in previous considerations of the applicant's case by the Army
Board for Correction of Military Records (ABCMR) in Docket Number AR
2001060314, on 11 September 2001 and Docket Number AR2002071082, on
16 January 2003.

2.  On 31 August 1971, he enlisted in the Army in Honolulu, Hawaii, for 3
years in the pay grade of E-1.  He was promoted to the pay grade of E-2 on
31 December 1971.  The applicant’s conduct and efficiency ratings dropped
from excellent to unsatisfactory in January 1972.

3.  On 28 February 1972, NJP was imposed against the applicant for
participating in a breach of peace by wrongfully engaging in a fist fight
at the 24 hour snack bar with another soldier; and for willfully and
unlawfully altering a public record (a military ID card).  His punishment
consisted of a reduction to the pay grade of E-1, a forfeiture of pay and
restriction.

4.  On 15 March 1972, NJP was imposed against him for being AWOL from
4 March until 10 March 1972.  His punishment consisted of a forfeiture of
pay.

5.  He went on to successfully complete his training as a light weapons
infantryman and he was transferred to Vietnam on 17 March 1972.  His
conduct and efficiency ratings are documented as being excellent after his
transfer to Vietnam.

6.  The applicant was convicted by a special court-martial on 7 October
1972, of sleeping on his post as sentinel; willfully disobeying a lawful
order from his superior noncommissioned officer; wrongfully communicate a
threat to kill an officer; and being disrespectful in language toward an
officer.  He was sentenced to a BCD, confinement at hard labor for 2
months, a reduction to the pay grade of E-1 and a forfeiture of pay in the
amount of $100.00 per month for 2 months.
7.  A review of the Record of Trial fails to show that during the court-
martial proceedings, the applicant revealed any incidents of racial
discrimination being made against him and he acknowledged that he
understood his rights as explained to him by a military judge.  In fact,
the Record of Trial shows that he contributed some of his acts of
misconduct to alcohol use and to “just letting himself go”.

8.  The convening authority approved the sentence as adjudged on 2 December
1972, and on 20 February 1973, Special Court-Martial Order number 20 was
published by Headquarters, 9th Infantry Division and Fort Lewis, Fort
Lewis, Washington, indicating that his sentence had been affirmed and
directing the execution of his BCD.

9.  Accordingly, on 2 March 1973, the applicant was discharged under the
provisions of Army Regulation 635-200, chapter 11, as a result of a duly
reviewed and affirmed special court-martial conviction.  He had completed
1 year, 2 months and 10 days of total active service and he was furnished a
BCD.

10.  The available records fail to show that the applicant was ever
diagnosed with or displayed symptoms of PTSD prior to his discharge from
the Army.

11.  Further review of the available records fail to show that the
applicant ever applied to the Army Discharge Review Board for an upgrade of
his discharge within that board’s 15-year statute of limitations.

12.  On 11 September 2001, this Board denied the applicant’s request for an
upgrade of his discharge.  His case was reconsidered by the Board on
16 January 2003 and again denied.

13.  In a letter dated 9 January 2004, addressed to “Whom It May Concern”,
a VA counselor acknowledged that their records show that the applicant
suffers from PTSD owing to his Vietnam experience and that he has sought
treatment from the Veterans Centers in Honolulu since 1992.  The letter
further indicates that he receives Disability Social Security for PTSD and
that there is little likelihood that his condition will improve to the
point where gainful employment becomes an option.

14.  On 26 March 2004, a clinical social worker from Solis & Associates
composed a letter to this Board indicating that she concurred with the
diagnosis of PTSD and that it was present while he was still on active duty
in Vietnam.
15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 11 of that regulation states, in
pertinent part, that a member will be given a BCD pursuant only to an
approved sentence of a general or special court-martial, after completion
of appellate review and after such affirmed sentence has been ordered duly
executed.

16.  Title 10, United Stated Code, section 1552, the authority under which
this Board acts, provides, in pertinent part, that the Army Board for
Correction of Military Records 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
modify the severity of the punishment imposed

17.  On 4 April 1977, the Department of Defense (DOD) directed the Services
to review all less than fully honorable administrative discharges issued
between
4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge
Review Program (Special) (SDRP) required, in the absence of compelling
reasons to the contrary, that a discharge upgrade to either honorable or
general be issued in the case of any individual who had either completed a
normal tour of duty in Southeast Asia, been wounded in action, been awarded
a military decoration other than a service medal, had received an honorable
discharge from a previous period of service, or had a record of
satisfactory military service of 24 months prior to discharge.
Consideration of other factors, including possible personal problems, which
may have contributed to the acts which led to the discharge, and a record
of good citizenship since the time of discharge, would also be considered
upon application by the individual.

18.  In October 1978, Public Law 95-126 was enacted.  This legislation
required the service Departments to establish historically consistent,
uniform standards for discharge reviews.  Reconsideration using these
uniform standards was required for all discharges previously upgraded under
the SDRP and certain other programs were required.  Individuals whose SDRP
upgrades were not affirmed upon review under these historically consistent
uniform standards were not entitled to VA benefits, unless they had been
entitled to such benefits before their SDRP review.






DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses
charged.  Conviction and discharge were effected in accordance with
applicable law and regulations, and the discharge appropriately
characterizes the misconduct for which the applicant was convicted.

2.  The type of discharge that he received appears to be appropriate
considering the facts of the case.

3.  The contentions of the applicant and his counsel have been noted by the
Board.  Nonetheless, whether or not the applicant engaged in protracted
combat would not have resulted in his discharge being upgraded under the
DOD SDRP as that program allows only for the review of administrative
discharges.  His discharge was the result of a special court-martial
conviction, which was a punitive discharge.  Therefore, he would not have
had his records reviewed under the DOD SDRP.

4.  The Board has also noted that documentation submitted by the VA, social
workers and counselors regarding his medical condition.  However, there is
no evidence in the available records, neither has the applicant nor his
counsel submitted any evidence that supports the contentions that he
suffered from PTSD while he was in the Army or that his acts of misconduct
were the result of PTSD.  The evidence of record does show that during the
court-martial proceedings, he contributed his actions to alcohol and to
just letting himself go.

5.  Consideration has been given the fact that he is now receiving
Disability Social Security for PTSD and the fact that documentation that he
provided in behalf of his application shows that he now suffers from PTSD.
However, none of the documentation that he submitted is sufficient proof
that he was suffering from PTSD while he was in the Army or that his acts
of misconduct were directly related to his PTSD.  According to the 9
January 2004 letter from the VA he did not seek treatment from the Veterans
Centers for PTSD until 1992, almost 20 years after his discharge from the
Army.

6.  Consideration has also been given to all of the letters and documents
submitted by the applicant from his family members, friends, associates and
social workers; however, they are not sufficiently mitigating to warrant
relief when compared to the nature of his offenses.  He was convicted by a
special court-martial of communicating a threat to kill an officer; being
disrespectful in

language toward an officer; sleeping on his post as sentinel; and willfully
disobeying a lawful order.  These acts of misconduct may seem to be minor
offenses in the applicant’s opinion.  Nevertheless, even under today’s
standards, they are acts of misconduct triable by court-martial and he was
tried accordingly.

7.  In order to justify correction of a military record the applicant must
show or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy this requirement.

8.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

rr    _____  elp _____  mm______  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 to amend the decisions of
the ABCMR set forth in Docket Number AR 2001060314, dated 11 September 2001
and Docket Number AR2002071082, dated 16 January 2003.




                                  _____Melvin H. Meyer____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004102732                            |
|SUFFIX                  |                                        |
|RECON                   |20030116                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19730302                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 11/SPCM CONVICTION              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  675  |144.6800.0000/BCD                       |
|2.  678                 |144.6803.0000/SERIOUSNESS OF OFFENSE    |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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