BOARD DATE:	  19 June 2012

		DOCKET NUMBER:  AR20120000057 


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, a Vietnam Veterans of America Regional Director, requests, on behalf of the daughter of a deceased former service member (FSM), that the FSM's discharge be upgraded from an undesirable discharge (UD) to a general discharge (GD).  He also requests a personal hearing.

2.  The applicant states, in effect:

* The FSM completed a tour of duty in Vietnam with the 1st Battalion, 12th Cavalry, during the fiercest of battles from August 1966 to March 1967
* He served through multiple campaigns and received numerous awards
* He fought for his country as well as the demons of alcohol problems and prevalent racial issues at the time
* He reenlisted with every intention of making the Army a career; however, a mixture of alcohol and post-traumatic stress disorder (PTSD) caused him to go into an absent without leave (AWOL) status
* If he had not gone AWOL and sought medical attention he would have been diagnosed with chronic PTSD and awarded between 70 percent and 100 percent disability rating
* He committed suicide after his discharge and this left his family with shame that was attached because of cultural beliefs; his spirit will not be allowed to rest because of this shame
* It is clear from the statements submitted that he suffered from PTSD that caused his suicide
* Many bad conduct discharges were given out after the Vietnam War for frivolous reasons that were not supported by the Uniform Code of Military Justice (UCMJ)
* The FSM's crime was getting intoxicated and leaving his assigned post during stand-down and resizing the military
* The Board should take into consideration the circumstances battle-weary veterans faced returning home to a volatile situation and hostile attitudes  

3.  The applicant provides:

* Department of Veterans Affairs (VA) Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) 
* Self-authored statement/brief
* Citation for award of the Presidential Unit Citation to the 1st Battalion, 12th Cavalry with an attachment
* Letter from the Chairman of the Seminole Tribe of Florida
* Letter from the FSM's daughter
* Article Titled "Military Discharge Upgrade Sought for Tortured Hero [Applicant]”
* Letter from a former unit member
* FSM's daughter's certification of birth
* FSM's DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 14 November 1967 and 17July 1974
* FSM's DA Form 20 (Enlisted Qualification Record)
* FSM's certificate of death

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 FSM's records show he enlisted in the Regular Army on 9 November 1965 and held military occupational specialty 11B (Light Weapons Infantryman).  

3.  He served in Vietnam through five campaigns from on or about 19 May 1966 to 5 June 1967.  He was assigned to Company A, 1st Battalion, 12th Cavalry.  

4.  On 10 March 1967, while in Vietnam, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for being drunk and disorderly while on duty and failing to go to his appointed place of duty at the time prescribed.

5.  Upon completion of his Vietnam tour he was assigned to the 3rd Battalion, 325th Infantry, Fort Bragg, NC.  Shortly after his arrival, he was honorably discharged on 14 November 1967 for the purpose of immediate reenlistment.  His DD Form 214 for this period of service shows he was awarded the:

* Parachutist Badge
* Vietnam Service Medal
* National Defense Service Medal
* Vietnam Campaign Medal
* Two Overseas Service Bars

6.  He reenlisted in the Regular Army at Fort Bragg, NC, on 15 November 1967.  While at Fort Bragg, he accepted NJP under the provisions of Article 15 of the UCMJ on:

* 6 September 1968, for being incapacitated in the performance of his duties as a result of his indulgence in intoxicating liquor
* 2 December 1968, for being absent without leave (AWOL) from 
30 November to 1 December 1968
* 20 January 1969, for being AWOL from 27 to 30 December 1968

7.  On 26 February 1969, consistent with his pleas, he was convicted by a special court-martial of one specification of breaking restriction and one specification of being AWOL from 1 to 4 February 1969.  The Court sentenced him to a forfeiture of pay.  The convening authority approved the sentence on 3 March 1969.

8.  On 19 November 1969, consistent with his pleas, he was convicted by a special court-martial of four specifications of assaulting four different Soldiers on separate occasions.   The Court sentenced him to a forfeiture of pay and confinement at hard labor.  The convening authority approved the sentence (but he suspended the confinement) on 4 December 1969.

9.  The FSM also accepted NJP under the provisions of Article 15 of the UCMJ on:

* 6 February 1970, for failing to go to his appointed place of duty at the time prescribed twice
* 2 May 1970, for failing to go to his appointed place of duty at the time prescribed twice
* 2 June 1970, for failing to go to his appointed place of duty at the time prescribed
* 22 June 1970, for failing to go to his appointed place of duty at the time prescribed twice

10.  On 3 August 1970, he departed his unit in an AWOL status and on the same date he was dropped from Army rolls as a deserter.  He was apprehended by Federal authorities in Florida and returned to military control on or about 31 May 1974 at Fort Gordon, GA.  

11.  In a memorandum, titled: Commander's Inquiry, the FSM's immediate commander indicated that he conducted an informal investigation in an attempt to determine why the FSM had absented himself without authority.  This investigation did not reveal any undue domestic strife, financial difficulties, or coercion on the part of any member of the command.  The commander opined that the FSM's absence was caused by:

* Gross immaturity
* Failure to accept responsibility and routine of Army life
* The FSM's intent not to return

12.  On 7 June 1974, court-martial charges were preferred against him for one specification of being AWOL.

13.  On 7 June 1974, the FSM consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, the FSM requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge, he acknowledged he:
* was making this request of his own free will and he had not been subjected to any coercion whatsoever
* understood that if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate
* he acknowledged he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he acknowledged he understood he could expect to encounter substantial prejudice in civilian life
* he elected to submit a statement on his own behalf but it is not available for review with this case

14.  On 13 June 1974, his immediate commander recommended approval with the issuance of an Undesirable Discharge Certificate.  

15.  Consistent with the FSM's chain of command's recommendations, the separation authority approved the FSM's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade, if applicable, and issued an Undesirable Discharge Certificate.  

16.  The DD Form 214 he was issued shows he was discharged on 17 July 1974 under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by a court-martial with a UD.  He completed 1 year, 11 months, and 23 days of creditable active military service during this period and he had 1,490 days of lost time recorded on his DD Form 214.

17.  The applicant provided:

	a.  GOs Number 47, dated 12 September 1968, awarding the 1st Battalion, 12th Cavalry, the Presidential Unit Citation for extraordinary heroism in combat action in Vietnam during the Battle of Hoa Hoi on 2 and 3 October 1966.  

	b.  An attachment to the Presidential Unit Citation, authored by Jxxxx T. Rxxx, Vietnam Magazine, August 1994, describing in details the Battle of Hoa Hoi, during which the unit trapped a large number of enemy personnel in the village of Hoa Hoi near the South.  Several hundred enemy soldiers were killed with few U.S. casualties.  

	c.  Letter, dated 1 November 2011, from the Chairman of the Seminole Tribe of Florida, who met the FSM in Vietnam and knew of his bravery and courage under fire during some of the Vietnam era's most violent conflicts.  The author of the letter describes some of the challenges facing veterans returning home from Vietnam at the time and how the FSM suffered from alcohol-related issues and PTSD.  The author adds that he was unaware of the FSM's AWOL.  He contends that the Army did not provide help for Soldiers suffering from substance abuse or mental conditions at the time.  The FSM's medical issues should be factored into the review.

	d.  Letter, dated 7 September 2011, from the FSM's daughter, who describes her late father as an honorable man who served his country proudly.  Upon his return from the fiercest battles in Vietnam his addiction to alcohol that originated during his service ultimately led to his discharge.  He would later commit suicide in a tragic way.  She adds that according to their faith/belief, they believe when a warrior is dishonored either in combat or afterwards it reflects not only on him, but the family, extended family, and clan as well.  This tarnish is not easily polished.

	e.  An undated article, titled "Military Discharge Upgrade Sought for Tortured Hero [the applicant]" describes the FSM's background, military service, Vietnam service, awards and decorations, alcohol addiction, PTSD, and ultimately his discharge.

	f.  Email letter, dated 2 May 2002, from a member of the FSM's unit who knew and served with him in Vietnam.  He chronicles instances of the FSM's bravery during several battles including the Battles of Hoa Hoi and Kom San.  He describes the FSM as a brave and courageous warrior who contributed greatly to the success of the unit.  

	g.  The FSM's death certificate shows he died due to suicide on 13 September 1974. 

18.  There is no evidence in the FSM's records that indicates the FSM or anyone on the applicant's behalf petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or GD is authorized, a UD was considered appropriate at the time the applicant was discharged.

20.  Army Regulation 635-200, paragraph 3-7a, provides that 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.

21.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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.  

22.  Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  It states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the personal hearing, the applicant’s request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2.  With respect to the character of service:

	a.  The FSM's records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The FSM voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.

	b.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  With respect to the applicant's arguments:

	a.  The FSM's service in Vietnam and his multiple combat awards are not in question.  However, there is no evidence in his records and none was provided with this application to show the FSM was diagnosed with PTSD or any other medical condition that led to his extensive history of misconduct.  

	b.  The FSM's immediate commander conducted an informal investigation in an attempt to determine why the FSM had absented himself without authority.  This investigation did not reveal any undue domestic strife, financial difficulties, or coercion on the part of any member of the command.  The commander opined that the FSM's absence was caused by gross immaturity, failure to accept responsibility, and his lack of intent to return.  There is no evidence in the FSM’s record and the applicant provided none to show the FSM addressed his issues with his chain of command or other supporting channels at his installation.  

   c.  The FSM's cultural beliefs are noted.  However, there is no provision to set aside a UD because of one's beliefs.  The FSM's record was marred with misconduct that included two courts-martial, eight instances of NJP, and an extensive history of AWOL. 

	d.  The FSM was not discharged because he served in Vietnam or because he was a battle-weary veteran who may have received an unwelcome reception upon his return from Vietnam.  He was not discharged because of his cultural belief and he was not discharged because of PTSD.  The FSM was discharged because he chose to go AWOL and when he was apprehended – not surrendered - he chose to be discharged. 

4.  Based on his record of indiscipline, the FSM's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge or a GD.

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)                                         AR20120000057



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ABCMR Record of Proceedings (cont)                                         AR20120000057



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