IN THE CASE OF:	

		BOARD DATE:	   22 May 2014 

		DOCKET NUMBER:  AR20130015616 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's previous request for an upgrade of his bad conduct discharge to an honorable discharge.  Counsel also requests a personal appearance hearing.

2.  Counsel states the applicant enlisted in the Army and was sent to Vietnam after he completed his airborne training.  He served with Company E (Long Range Reconnaissance Patrol (LRRP)), 20th Infantry Regiment (Airborne), from 15 October 1967 to on or about 10 April 1968 and his conduct and efficiency ratings were listed as "excellent."  He participated in numerous LRRP's and was engaged in several firefights.  During this time, the applicant developed a skin rash which he still has problems with to this day.  After an incident in which he was ordered to shoot an enemy lookout, he started having nightmares.  The applicant went to his command repeatedly to ask for medical treatment for the rash; however, he received nothing more than an ineffective trip to the aid station and the cream he was prescribed did nothing to alleviate the rash and the resulting itching, bleeding, and pain.  Over a period of approximately 4 months, the applicant also approached his command about the nightmares; however, his concerns were ignored and he was sent back to the field without being counseled or helped in any way.  He was told by his first sergeant (1SG) that it would be detrimental to him if he kept bringing those issues up.

	a.  On 11 April 1968, the applicant received transfer orders to Company A, 1st Battalion, 35th Infantry Regiment, thereby losing his jump status and pay.  This concerned him because he had been sending the jump pay and his other pay back to the States to support his infant daughter.  Although the applicant repeatedly requested to know why he was being transferred, he was not given an answer by his command.  He was only ordered to proceed to his new unit, first by a sergeant (SGT), and then by First Lieutenant (1LT) D____.  The applicant refused to do so without an answer and was placed under arrest.  It must be noted that at no time did the applicant threaten anybody or demand anything other than an answer to his question.  The chain of command violated Article 138 of the Uniform Code of Military Justice (UCMJ) by refusing to respond to his questions.  Article 138 of the UCMJ guarantees a Soldier's right to complain to any superior officer if he feels that he has been wronged.  The applicant complained, but he was arrested and court-martialed instead of getting an answer as to why he was being taken off jump status.  The Army violated its own procedures by refusing the applicant redress through his chain of command.

	b.  After the applicant refused 1LT D____'s order, he was ordered to go to a holding barracks where he stayed for at least 2 weeks.  During his time in the holding barracks, he followed all orders pertaining to his duties around the barracks.  Eventually, he was advised that he was being court-martialed for disobeying a direct order.

	c.  The applicant was appointed a white lawyer who did little or nothing to help provide a defense.  In fact, his lawyer only met with him once before his court-martial for approximately 20 minutes during which time the lawyer advised him of the charge against him, told him he was facing 5-10 years in prison, and strongly advised him to plead guilty and seek a lesser sentence.  At no time did the lawyer ask him about the circumstances surrounding his arrest or ask the applicant for any possible defense he might have.  The applicant's court-martial was held before an all-white jury and the applicant entered his guilty plea under duress due to his lawyer's ineffectiveness and lack of desire to help him prepare a defense.  Also of note is the applicant's limited education at the time of entering his guilty plea (8th grade education) which makes his lawyer's ineffective counsel more serious.  According to Dr. W____ C____, the applicant had been beaten down psychologically so much by that time that he was not competent to sign his plea.

	d.  Historically, the U.S. military had a severe problem with racism during the Vietnam War and it was brought to light with the Department of Defense (DOD) Report of the Task Force on the Administration of Military Justice in the Armed Forces, dated 30 November 1972, and also in a Civil Liberties report, dated February 1973, titled, "Battleground:  Race in Viet Nam."  If a white Soldier had asked for help with medical problems during a tour in Vietnam and also had requested to speak to the Inspector General (IG) about being transferred with no explanation and a loss of jump pay, counsel is sure the outcome would have been different.  The facts in this case strongly suggest the applicant's treatment was based more on the color of his skin, not on his actual position regarding his transfer to another unit at the time.

	e.  Regardless of any "troublemaking" that might have taken place by other African-American Soldiers during the Vietnam War that caused commanders to come down more harshly on them, the applicant was a good Soldier who served his country the way he was asked.  Because of the color of the applicant's skin, he was treated more harshly by his command simply for asking for medical help and an answer to a legitimate concern.

	f.  During his time imprisoned by the Army, the applicant adjusted well and was not a behavioral problem.  Before being sent to Fort Leavenworth, KS, the applicant was imprisoned in the Long Bình Jail, South Vietnam.  The applicant was present at Long Bình Jail during the infamous 1968 riots there; however, he did not take part in the riots and kept to himself as he did not want any more trouble for himself.  In short, the applicant was not a "troublemaker" during his confinement or during his enlistment.

	g.  Since being discharged from the Army, the applicant has stayed married to the same woman for 25 years, raised 10 children, and held 2 long-term jobs in a cotton mill and the maintenance department of Auburn University.  He has not been convicted of any crimes since his court martial.

3.  Counsel provides:

* letter from counsel, dated 20 August 2013
* position paper from counsel, dated 20 August 2013
* request for formal hearing, dated 20 August 2013
* notarized statement from the applicant, dated 5 August 2013
* 3rd U.S. Army 3AA Form 291 (Statement of Understanding Regarding Assignment, Housing, and Overseas Transportation for Dependents), dated 16 February 1967
* Company E (LRRP) newsletter The Typhoon, dated July 1968
* partial form (Review of Staff Judge Advocate (SJA)), dated 13 October 1968
* DOD Report of the Task Force on the Administration of Military Justice in the Armed Forces, dated 30 November 1972
* 
Civil Liberties report, dated February 1973, titled, "Battleground:  Race in Viet Nam"
* letter from the Army Board for Correction of Military Records (ABCMR), dated 30 August 2012
* correspondence from the office of Senator S____, Alabama, dated 14 May 2013
* Department of Veterans Affairs (VA) Form 21-22a (Appointment of Individual as Claimant's Representative), dated 14 November 2012
* letter of support from office of Senator W____, Alabama, dated 28 May 2013
* retrospective psychological examination, dated 15 July 2013
* notarized statement from the applicant's cousin, Mr. L____ P____, dated 15 August 2013
* notarized statement from the applicant's brother, Mr. W____ S____, dated 15 August 2013
* notarized statement from the applicant's sister, Ms. M____ L____ S____, dated 9 September 2013
* notarized statement from a former Soldier who served with the applicant, Mr. M____ E. P____, dated 21 October 2013
* correspondence from the office of Senator S____, Alabama, dated 7 November 2013
* notarized statement from U.S. Marine Corps (USMC) Sergeant Major (SGT MAJ) (Retired) H____ B. S____, Jr., dated 26 November 2013
* Complete copy of the applicant's military records

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120003864 on 23 August 2012.

2.  Counsel provided new arguments and new evidence.  Therefore, they warrant consideration by the Board.

3.  The applicant enlisted in the Regular Army on 16 February 1967 and held military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained was private first class (PFC)/E-3.

4.  His DA Form 20 (Enlisted Qualification Record) shows:

	a.  He was assigned to Vietnam from 22 August 1967 to on or about 28 June 1968 and served with:

* Company D, 51st Infantry Regiment, from on or about 27 August 1967 to on or about 26 September 1967
* Company E (LRRP), 20th Infantry Regiment (Airborne), I Field Force Vietnam (IFFV) from on or about 15 October 1967 to on or about 10 April 1968
* Company A, 1st Battalion, 35th Infantry Regiment, 4th Infantry Division, from on or about 11 April 1968 to on or about 26 June 1968

	b.  He was assigned to the Correctional Holding Detachment, U.S. Detention Barracks, Fort Leavenworth, KS, from on or about 11 December 1968 to 24 March 1969.

5.  His records contain a DA Form 2627-1 (Record of Proceedings Under Article 15 ,UCMJ), dated 31 January 1968, showing he accepted nonjudicial punishment for being absent without leave (AWOL) from his unit on 21 January 1968.

6.  Headquarters, 4th Infantry Division, Vietnam, General Court-Martial Order Number 31, dated 13 October 1968, shows he pled guilty on 27 June 1968 and was convicted of one specification of disobeying a lawful order from a superior officer to join the company consistent with his plea.  The court sentenced him to a bad conduct discharge, forfeiture of two-thirds of his pay and allowances, confinement at hard labor for 18 months, and reduction to the lowest enlisted grade.  The convening authority approved so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 18 months, forfeiture of $73.00 pay per month for 18 months, and reduction to private/E-1, and, except for the bad conduct discharge, ordered the sentence approved.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

7.  The U.S. Army Court of Military Review affirmed the approved findings of guilty and a modified sentence on 17 December 1968.  As stated in the previous Record of Proceedings, the court noted an error with the original sentence as pertained to "forfeiture of pay and allowances" and approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 1 year, reduction to the lowest enlisted grade, and forfeiture of $73.00 pay per month for 12 months.

8.  His records contain a DD Form 1476 (Prisoner's Admission Summary Data) and a DD Form 1478 (Prisoner's Summary Continuation Sheet), dated 3 January 1968.

	a.  The DD Form 1476 shows the applicant received a lawful order from his superior officer to go forward and join the rest of the company in Vietnam on 5 May 1968.  The applicant disobeyed this order.  However, the applicant provided his version of the incident and stated he wanted to see the IG about a unit change and being placed back on jump status.  At the time of his request, the officer told him to join the rest of his company and the applicant refused.

	b.  The DD Form 1478 shows the applicant received a psychiatric examination on 18 November 1968.  The psychiatrist stated the applicant had a fairly good military record prior to his confining offense and was a good combat Soldier in Vietnam, although he did receive two NJP's under the provisions of Article 15 of the UCMJ.  The applicant was not able to get along with his patrol leader and felt that several men in his unit were prejudiced.  He was transferred from the 101st Airborne Division to the 4th Infantry Division and underwent a serious decrease in morale.  One month later when he was not able to return to jump status, he refused to go to the field.  The applicant stated he was not trying to avoid combat.  He just felt it was unfair that he had been transferred out of his airborne unit.

9.  His records contain a Provost Marshal General (PMG) (K) Form Number 82 (Clemency and Parole Action Record), dated 18 February 1969, showing:

	a.  The applicant pled guilty to the charge at his court-martial and testified under oath that he "performed combat missions and received airborne jump pay. 
He was transferred to his present unit [4th Infantry Division] in April 1968, thereby coming off jump status and losing the additional jump pay.  He refused the order to go forward on a mission because he was getting nervous, in view of former missions, and felt his 'time had come.'  He stated he would rather not go back to the field now but would do so in order to avoid going to jail.  He stated that he had been under enemy fire but had never been wounded."

	b.  The applicant had previously received two NJP's under the provisions of Article 15 of the UCMJ, one for missing formation and the other for being disrespectful.

10.  General Court-Martial Order Number 183, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, on 24 February 1969, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

11.  His records contain a PMG (K) Form Number 82, dated 4 March 1969, showing the Army and Air Force Clemency and Parole Board recommended no clemency after reviewing his case.

12.  His records contain a letter from the Chief, Clemency Branch, Department of the Army Office of the PMG, dated 17 March 1969, showing the applicant’s request for clemency was disapproved by the Secretary of the Army.

13.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under other than honorable conditions on 24 March 1969 as a result of court-martial in accordance with Army Regulation 635-200 (Personnel Separations), paragraph 11-1b.  He completed a total of 1 year, 4 months, and 12 days of creditable military service and accrued 270 days of lost time.

14.  Counsel provided a notarized statement from the applicant, dated 5 August 2013, wherein he stated:

	a.  In August 1967, he arrived in Vietnam and was assigned to Company D, 51st Infantry Regiment, as a rifleman where he began receiving jump pay.  In October 1967, he was inducted into Company E (LRRP), 20th Infantry Regiment (Airborne), IFFV, where he was trained as a pathfinder by a green beret (special forces) unit of the 101st Airborne Division.  Shortly after, he moved to Camp Enari, Pleiku, which was his unit's base compound.  After many months there he developed an itchy rash on his chest, neck, upper arms, and face.  The rash itched all the time, but mostly at night when he was trying to sleep.  Many nights after not getting any sleep, he would find the clothing on the upper part of his body covered in blood.  He asked permission to see a doctor and was then sent to the dispensary where he was given a lotion-like tube of cream to use.  He used the cream/lotion, but he was still going on reconnaissance missions with his unit and only got to go to the dispensary for further treatment when his unit was in the rear at Camp Enari, Pleiku.

	b.  He was never informed that his performance was in question while he was assigned to the 20th Infantry Regiment.  Neither was he informed that he had been promoted to PFC/E-3.  However, he learned of his promotion in 2011 when his lawyer forwarded him a copy of his military records.

	c.  In April 1968, while at a forward base camp near Ban Mê Thu?t, his squad leader told him to gather his gear and report to the helicopter pad for transport back to base camp.  Upon arriving back at base camp he was told by a SGT to get all his gear and follow the SGT.  He followed the SGT to a barracks where he was led inside to a bunk and left there.  As he looked around, it dawned on him that all of the people he saw were black Soldiers.  Later that evening he spoke to several of the other Soldiers.  They told him the only reason he would be in that barracks was due to some kind of administrative procedure such as a special court-martial, a general court-martial, or because he was being "booted out."  One of the Soldiers assigned to that barracks told him, "This is your wake up call, for this is the Army's way of striking a blow against the civil rights movement at home."  There was no other reasonable explanation for the way he was being treated by the Army other than the one given to him by the other black Soldiers.  All of his conduct and efficiency ratings were "excellent."  Even though he did not want to believe it, over the next few months he began to realize that not everyone viewed the "backwoods, uneducated, agreeable black man as innocent."

	d.  After about a month, his 1SG sent for him and asked how he felt about working to help remove all of the weapons from the weapons room for some repair.  He jumped at the opportunity and worked the task until completion.  He also took the opportunity to ask his 1SG to get him an appointment with the Judge Advocate General (JAG) office to find out why he had not been paid and also whether he was going to be able to remain on jump status.  He also showed him the rash and bumps on his upper body and requested medical help.  His 1SG said he would talk to 1LT D____ and get back to him.  After more than 2 weeks had passed and he still had not heard from 1LT D____, he approached his 1SG again and asked him about his status as a paratrooper and the other request for medical treatment.  The 1SG responded that he did not know the status.

	e.  He made several trips back and forth to the orderly room where he asked his 1SG and 1LT D____ for medical treatment and an appointment to see a JAG officer.  He had also asked the 1SG why he had been reassigned and about his jump pay.  He recounted being told by both the 1SG and 1LT D____ on at least two occasions to get his gear together, go to the helicopter pad, and prepare to leave to meet his unit in the field.  He stated on each occasion that he wanted to see a JAG officer and have his rash/skin condition taken care of by medical personnel before he went anywhere.  On each occasion he was directed to return to his barracks after the conversation ended.

	f.  Finally his 1SG took him to see a JAG officer.  The officer, who would be his defense counsel, informed him court-martial charges had been preferred against him for failing to obey an order from his superior officer.  The JAG officer advised him to plead guilty to the charges so he could receive a lighter sentence and go home.  He informed the JAG officer that he did not wish to plead guilty and was dismissed.

	g.  He also recounted an incident involving him and several other Soldiers who were playing cards and listening to his tape deck.  The duty SGT told them to turn down the music several times and each time he turned it down.  Eventually the duty SGT tried to damage his radio and so he turned it off.  The duty SGT became angry and called the military police who locked him in an ammunition container.

	h.  Eventually he was transported to the Long Bình Jail.  He remained there for approximately a month and then was transported back to his unit.  Shortly after arriving back at Fort Enari he was taken to see the JAG officer again.  He told the JAG officer the entire story.  The JAG officer said his only way out of this situation was to plead guilty to disobeying a superior officer, receive a light sentence with a bad conduct discharge, and go home.  At this point he was so stressed that he felt he would do anything to get away from the situation; therefore, he pled guilty.

15.  Counsel provided a psychological assessment conducted by Dr. W____ C____, a clinical psychologist, on 28 June 2013.  Dr. W____ C____ stated the applicant was referred for psychological assessment by counsel.  Counsel requested an opinion regarding the applicant's competency when he pled guilty and signed a plea agreement while serving in the military.  Regarding competency, it appears that the applicant was struggling with symptoms consistent with post-traumatic stress disorder along with other medical issues while he was still serving in Vietnam.  He denies receiving any treatment for the trauma symptoms and received minimal treatment for the skin rashes.  It also appears that he was under significant duress when he was moved from his unit, placed with another unit, and not provided any information regarding the reasons for this change.  He requested to talk with superiors, but he reports they would not answer his questions.  He was either ordered to the forward unit or back to his barracks.  He reported being the subject of ongoing harassment from the SGT and being placed in an ammunition dump overnight on one occasion.  When he was provided with counsel, the applicant believes his counsel did not advocate for him but wanted him to "just plead guilty so the process could move forward."  Based on his self-report, it appeared that the applicant had diminished capacity to make effective decisions and would have met the VA's criteria for insanity when he signed his plea agreement.

16.  Counsel provided a letter from Senator W____, wherein the Senator stated the applicant is an African-American and he (the Senator) had been provided with a copy of the DOD Report of the Task Force on the Administration of Military Justice in the Armed Forces, dated 30 November 1972, detailing the racial discrimination against African-American Soldiers during the Vietnam War and the resulting disparate punishment they received during military disciplinary proceedings.  The Senator believed the applicant "could have been affected by these practices, during both his arrest and court-martial."

17.  Counsel provided letters from Mr. L____ P____, the applicant's cousin, and from Ms. M____ L____ S____, the applicant's sister.  These letters indicated that the applicant was a pleasant, quiet, and very agreeable person who believed in fighting for his country and treating people with respect when he joined the Army. 
After he came back from Vietnam, there was a distinct change in his demeanor.  When he came back, he was angry and had a short fuse.  He was either talking constantly or he kept to himself.  The applicant came back with a rash all over his chest, back, and neck.  He would wake up many times with blood on the sheets of his bed and the rash did not seem to go away or get better.  Additionally, he would often have nightmares and yell out in the night as if he were fighting someone.

18.  Counsel provided a letter from Mr. M____ E. P____, a former Soldier who served in the applicant's unit in Vietnam.  Mr. M____ E. P____ stated he remembered the applicant as a quiet and easygoing Soldier who never started any trouble.  In Vietnam, there was definitely a separation between the races among the Soldiers.  The black Soldiers seemed to be treated more harshly than the white Soldiers for the same infractions.  The offense the applicant was arrested for was nothing more than an attempt by the applicant to get an answer about why he was being transferred out of the unit and thereby losing his jump status and pay.  This was something that any of the Soldiers in that unit would have done if confronted with the same situation.  In Mr. M____ E____ P____'s experience, the offense he was arrested for should have been resolved with nothing more than NJP under the provisions of Article 15 of the UCMJ.  Soldiers have a right under the UCMJ to ask for an answer when they think they have been wronged.  Transferring an airborne Soldier out of an airborne billet and unit and causing him to lose jump status and jump pay would have been something anybody in the unit would have questioned if faced with the same situation.

19.  Counsel provided a letter from USMC SGT MAJ (Retired) H____ B. S____, Jr., who stated he had reviewed the applicant's entire military records.  He further stated that based on his experience in the military, having dealt with and advised officers on the proper use and types and severity of punishments with respect to the UCMJ, he feels the applicant was treated unjustly and the punishment did not fit the crime.  The SGT MAJ was of the opinion that the applicant was a victim of racism within his unit in Vietnam.

20.  Counsel provided the July 1968 issue of the Company E (LRRP) newsletter The Typhoon.  This newsletter describes the company's mission in Vietnam.

21.  Counsel provided a copy of the DOD Report of the Task Force on the Administration of Military Justice in the Armed Forces, dated 30 November 1972. 
This report indicated the DOD task force found a disproportionate punishment of racial minorities in every category of discipline during the Vietnam.

22.  Counsel provided a copy of a Civil Liberties report, dated February 1973, titled, "Battleground:  Race in Viet Nam."  This report discussed white/black racism in Vietnam and discussed the ramifications, problems, and cultural attitudes that became pronounced as a result.

23.  Army Regulation 27-10 (Military Justice), chapter 19 (Complaints under Article 138) establishes procedures for preparation, submission, and disposition of complaints made pursuant to Article 138 of the UCMJ by a member of the Armed Forces against a commanding officer.  Article 138 of the UCMJ provides that any member of the Armed Forces who believes him or herself wronged by his or her commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer who shall forward the complaint to the officer exercising court-martial jurisdiction over the officer against whom it is made.  The officer exercising general court-martial jurisdiction shall examine the complaint and take proper measures for redressing the wrong complained of and he shall, as soon as possible, send a true statement of that complaint with the proceedings thereon to the Secretary concerned.

	a.  Before submitting a complaint under Article 138 of the UCMJ, a member of the Armed Forces must make a written request for redress of the wrong to the commanding officer the member believes has wronged the member.  The request for redress must clearly identify the commanding officer against whom it is made, the date and nature of the alleged wrong, and if possible, the specific redress desired.  The request for redress will be submitted through command channels to the commanding officer who is alleged to have committed the wrong.

	b.  A commanding officer receiving a request for redress submitted under this regulation will respond in writing in a timely manner so the complainant will receive the response within 15 days.  If a final response within 15 days is not possible, an interim response will be provided that indicates the estimated date of a final response.  In acting upon the request, the commander may take remedial action or refuse the request.

	c.  A member of the Armed Forces may submit a complaint under Article 138 of the UCMJ for any act of omission by the member's commanding officer that the member believes to be a wrong and from which the member had requested redress and been refused.  Additionally, if no final response to the request for redress is received within 15 days through no fault of the complainant and no interim response has been provided, the complainant may assume the request for redress has been refused.

24.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. 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.

25.  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.

26.  Army Regulation 635-200, 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.

27.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  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.  Counsel'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 counsel was sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not necessary to serve the interests of equity and justice in this case.

2.  Counsel's argument and the publications he provided suggest that the applicant asked his chain of command for medical treatment for his rash and for the reason he was transferred to a new unit and removed from jump status.  The applicant was denied medical treatment and an answer to his reasonable questions which violated Article 138 of the UCMJ.  Counsel also suggests the applicant was a victim of racism and was severely punished by his chain of command simply because of the color of his skin.

3.  The applicant noted in his statement that he was given permission to see a doctor and was prescribed a lotion/medication for his rash; however, as he stated, he was still going on reconnaissance missions with his unit and only got to go to the dispensary for further treatment when his unit was in the rear.

	a.  Vietnam was an extremely hot and humid location and the applicant spent much of his time in the field, probably in the same dirty uniform and without access to proper bathing facilities.  This type of environment is conducive to rash and skin irritations.  However, he was a highly-trained and capable Soldier in an elite unit.  His presence in the field was necessary to accomplish the mission.  Therefore, it is understandable that as an able-bodied Soldier, he would have been required to fulfill his duties in the field environment.  Based on the applicant's own words, he was able to access the medical facilities to receive treatment and medication for his rash.

	b.  The applicant was reassigned to a new unit.  He was assigned to various details and duties at this new location while he was in the rear.  This new location would have had a medical facility or, at the very least, a medic who could have prescribed some sort of treatment.  By his own account, although he asked for medical attention, he did not press the issue until he was ordered to grab his gear and go to the field to meet his unit.  After this order was given, he refused to comply on the basis that he needed medical treatment for his rash.

	c.  The applicant's personal statements are the only evidence indicating he was refused medical treatment.  These statements do not, in and of themselves, constitute sufficient evidence to prove his chain of command ignored or denied his requests for medical treatment.

4.  The applicant stated in his own words that he asked his 1SG about his reassignment and removal from jump status and the 1SG told him he would speak to the 1LT about the issue.  When the applicant reengaged his 1SG a few weeks later, his 1SG told him he "did not know," indicating he did not know the status or did not have an answer yet.

5.  Counsel contends that the applicant's chain of command violated Article 138 of the UCMJ by refusing to answer the applicant's question regarding his removal from jump status and the stoppage of his jump pay.  However, this argument lacks merit.

	a.  Under Article 138 of the UCMJ, a Soldier who believes himself wronged by his commanding officer may request redress in a formal written complaint that is submitted through the chain of command to the Soldier's commanding officer.  If such redress is refused by the commander, the Soldier may then file an official complaint under Article 138 of the UCMJ to any superior officer.

	b.  The applicant claims to have requested medical treatment and information about his reassignment and removal from jump status.  He stated he did not receive a response to his verbal inquiries.  However, this lack of a response does not constitute a violation of Article 138 of the UCMJ.  Article 138 of the UCMJ is a formal process for resolving complaints of perceived wrongs.

6.  The applicant's statements are contradictory.  The evidence shows that during his court-martial proceedings he pled guilty and stated he refused the order to go forward on a mission because he was getting nervous in view of former missions and felt his "time had come."  However, he later stated at the detention center and in his statement to counsel and the psychologist who provided the psychological evaluation that he refused to go to the field because he wanted to receive medical treatment and see a JAG officer about his reassignment, removal from jump status, and loss of jump pay.

	a.  The bottom line is that whether he was afraid of losing his life or because he wanted his other issues resolved, he refused an order to rally with his unit in a combat environment.  That was his duty first and foremost.  He was an infantry Soldier who refused to join his infantry unit, to engage the enemy, and to complete a mission.

	b.  It is unclear whether he was denied medical treatment since he had ample time to seek treatment in the weeks or months before he was ordered to go on this mission.  If is further unknown whether his chain of command failed to respond to his questions about his assignment and jump status or simply had not made an appointment with a JAG officer yet due to the upcoming mission, or if they simply did not have answers to his questions.  Any statement made on this matter in support of or against the applicant's claims would be pure speculation as there is no supporting evidence to back up his statements.

	c.  Furthermore, the applicant had previously received two NJP's under the provisions of Article 15 of the UCMJ, one for missing formation and the other for being disrespectful.

7.  Counsel indicated that Dr. W____ C____ stated the applicant had been psychologically beaten down so much that he was not competent to sign his plea by the time of the court-martial.

	a.  However, this psychological evaluation was conducted over 40 years after the incident in question by a psychologist counsel engaged.  Making an accurate diagnosis on the applicant's psychological constitution over 40 years after the fact is an impossible feat.

	b.  Furthermore, the doctor in question can only opine based on the applicant's self-report that it appeared he had diminished capacity to make effective decisions when he signed his plea agreement.

8.  As stated in the previous ABCMR Record of Proceedings:

	a.  The applicant's trial by a general court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

	b.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed modified sentence ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

	c.  In addition to the court-martial conviction, his record of service included two instances of NJP.  As a result, his service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable or a general discharge is not warranted in this case.

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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120003864, dated 23 August 2012.



      ____________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)                                         AR20130015616



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ABCMR Record of Proceedings (cont)                                         AR20130015616



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