IN THE CASE OF:  	  

		BOARD DATE:  5 May 2015	  

		DOCKET NUMBER:  AR20140015892 


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 reconsideration of his earlier request for an upgrade of his bad conduct discharge. 

2.  As a new issue, the applicant requests correction of his DD Form 214 (Report of Separation from Active Duty) to show: 

* the date he entered active duty as 21 January 1973 vice 30 April 1973
* the character of service as general vice under other than honorable conditions
* the narrative reason for separation as medical/disability vice chapter 11 (court-martial)
* removal of and credit for 81 days of lost time

3.  The applicant states:

* while at Fort Ord, CA, he contracted spinal meningitis and he was hospitalized for 2 weeks before completing basic training
* in January 1974, while disarming a Soldier pointing his gun, he was shot and received multiple physical profiles
* after being shot in the left knee, he was the subject of unlawful and unjust treatment
* despite being shot, he was retained in the Army/unit and subjected to the rigor of training and exercise
* he was ordered to participate in training which resulted in multiple injuries with multiple temporary profiles and restriction
* he was transferred from the 82nd Airborne Division to another unit due to ongoing medical issues and he did not have a specific specialty in that unit
* when his unit deployed to the field, he stayed back with other Soldiers with profiles and he was on a permanent profile that prevented him from participating in unit training
* he was ordered to deliver rations to the Soldiers in the field and immediately returned to the rear (garrison)
* while delivering rations, an individual (officer) approached him and ordered him to remain in the field for the remainder of the field exercise
* he did not have his gear, equipment, clothing, or supplies and he was still on a profile that prevented his participation 
* he was on a profile and he should not have been ordered to violate the profile
* his medical profile stated he was not qualified for full military duty and that is why he should have been referred to the disability system
* he was retained in a Special Forces unit at Fort Bragg for an additional 
16 months in violation of the regulation
* he was subjected to continued harassment by his superiors and he was labeled as lazy, a malingerer, or self-centered
* a review of his records should be conducted in view of the Secretary of Defense's new guidance 

4.  The applicant provides: 

* Congressional correspondence
* Multiple email and/or letters to this Board and other Government officials 
* Extract from the "Special Vietnam-Era Review programs (Amnesty)"
* Vietnam Veterans of America Executive Summary
* DA Form 3349 (Physical profile)
* Appeal to the Department of Veterans Affairs and/or Boards of Veterans Appeals
* VA progress notes

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AC77-03333, dated 5 October 1977, and AC77-03353A, dated 30 April 1980. 

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration in that his request was not submitted within one year of the Board's original decision.  However, the new issues he raises are related to his overall service and characterization of service.  As an exception to policy, this issue will be reconsidered by the Board.

3.  The applicant's records show he enlisted in the Regular Army for 4 years on 18 January 1973.  The expiration of his term of service (ETS) date was established as 17 January 1977.  

4.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Infantryman).  His records contain a certificate, dated 4 May 1973, that shows he also completed the Airborne Course at Fort Benning, GA.

5.  Following completion of training, he was assigned to Company B, 2nd Battalion, 505th Infantry Regiment, Fort Bragg, NC, in or around August 1973.  His records contain a certificate issued by the 82nd Airborne Division confirming he completed the 3-week Leadership School at Fort Bragg. 

6.  On 25 January 1974, while assigned to B Company, 2nd Battalion, 505th Infantry Regiment, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful in language toward a noncommissioned officer (NCO).  He was reduced to private/E-2. 

7.  On 7 March 1974, the commanding officer of Company B, 2nd Battalion, 505th Infantry, initiated a Certificate of Unsuitability for Reenlistment (Bar to Reenlistment Certificate) against the applicant.  

	a.  The commander described the applicant as a substandard Soldier who had a habitual record of misconduct as evidenced by disrespecting an NCO on 10 September 1973, failing to repair on 10 October 1973, disrespecting an NCO on 25 January 1973, and being late for duty on 19 February 1974. 

	b.  The commander also stated the applicant's attitude towards his chain of command was negative and his conduct was unbecoming.  He was pending a court-martial for an unauthorized weapon resulting in one individual, other than himself, being wounded (emphasis added).  He also demonstrated a lack of discipline and respect by abandoning his road guard position during a battalion live fire exercise. 

8.  During June 1974, he received an Enlisted Evaluation Report covering the rating period August 1973 to June 1974 for his duties as an ammunition bearer.  His rater stated that he performed in an average manner. 
9.  In or around August 1974, he was reassigned to Company A, 1st Battalion, 505th Infantry.  During December 1974, he received an Enlisted Evaluation Report covering the rating period August through December 1974.  His rater rated him below average and stated that he did the minimum to get by and he had poor standards of personal appearance and self-discipline. 

10.  On 24 March 1975, Headquarters, 573rd Personnel Service Company, Fort Bragg, published Special Orders (SO) Number 62 promoting him to private first class/E-3 in MOS 11B while a member of 333rd Signal Company. 

11.  On 21 April 1975, Headquarters, 573rd Personnel Service Company, Fort Bragg published SO Number 83 withdrawing MOS 11B and awarding him MOS 72E (Teletype Center Specialist), effective 15 April 1975, as a result of airborne termination and reclassification.  He was reassigned to the 333rd Signal Company.

12.  On 19 May 1975, while assigned to the 333rd Signal Company, he accepted NJP under the provisions of Article 15 of the UCMJ for assaulting another Soldier by striking him with the fist.  

13.  On 6 June 1975, the applicant was given an order from his commanding officer to proceed to a site at Fort Bragg and remain there until 8 June 1975.  He proceeded to the site, unloaded "C" rations from his truck, and prepared to leave. The applicant was then told by his NCO not to leave and remain with the truck.  He stated "if you want me out of the truck you will have to put me out."  He did get out of the truck but subsequently departed in another truck.  He was located about 0715 hours on 7 June 1975 sleeping in the barracks.  About 0900 hours, he was informed by his commanding officer that he was going to prefer court-martial charges against him and place him in pre-trial confinement.  Applicant then departed the area with the commanding officer telling him to stop.  He proceeded to his own privately owned vehicle, started the engine, and moved towards the unit commander who had placed himself in front of the vehicle.  The vehicle made contact with the commander although it did not harm him.  The applicant then got out of the car and escaped by running into the woods.  The military vehicle in which he returned to the barracks from the field site had been found abandoned about 30 miles from Fort Bragg.  The applicant returned to military control on 9 June 1975. 

14.  During August 1975, he received an Enlisted Evaluation Report covering the rating period June 1975 through August 1975 for his duties as communications center specialist.  His rater rated his performance as below average and stated that he was self-centered and did not accept responsibility.  He argued with his chain of command over decisions made concerning him and he possessed a serious leadership problem. 

15.  On 4 August 1975, he was arraigned and tried by a general court-martial that convened at XVIII Airborne Corps, Fort Bragg, NC, for violating the UCMJ: 

* Charge I, violation of Article 86, one specification of absenting himself from his unit from 7 to 9 June 1975
* Charge II, violation of Article 90, one specification of willfully disobeying a lawful command given by a commissioned officer on 6 June 1975 and one specification of willfully disobeying a lawful command from a commissioned officer on 7 June 1975
* Charge III, violation of Article 90, one specification of being disrespectful toward an NCO
* Charge IV, violation of Article 128, assaulting a commissioned officer by driving into him with an automobile on 6 June 1975
* Charge V, violating Article 121, one specification of wrongfully appropriating a 1 1/2 ton truck on 6 June 1975 

16.  On 5 August 1975, consistent with his pleas, the general court-martial found him guilty and convicted him of all charges and specifications.  The court sentenced him to a bad conduct discharge. 

17.  On 2 October 1975, the convening authority disapproved the findings of guilty of the specification of Charge IV and approved the sentence.  Additionally, the convening authority ordered the record of trial forwarded to The Judge Advocate General of the Army for appellate review.

18.  On 9 April 1976, the applicant signed out on excess leave pending the appellate review.  Shortly after that, on 2 July 1976, the U.S. Court of Military Review affirmed the findings of guilty and the sentence.  The applicant was still on excess leave pending a review by the U.S. Court of Appeals. 

19.  Item 21 (Time Lost, Section 972, Title 10, U.S. Code (USC)) of his DA Form 2-1 shows he had 81 days of lost time as follows: 

* absent without leave (AWOL) from 17 January to 5 February 1976 (20 days) 
* confined by military authorities (pending disposition of court-martial charges) from 6 February to 6 April 1976 (60 days)
* AWOL from 7 to 8 June 1976 (1 day)


20.  The applicant was discharged from the Army on 19 August 1976.  His DD Form 214 shows he was discharged in accordance with chapter 11 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) as a result of court-martial with an under other than honorable conditions characterization of service.  He was issued a DD Form 259A (Bad Conduct Discharge Certificate).  His DD Form 214 further shows in:

* Item 15 (Date Entered Active Duty This Period) - 73-04-30
* Item 9d (Effective Date (of Separation) - 76-08-19
* Item 18a (Net Active Service This Period) - 3 years and 29 days
* Item 18c (Total Active Service) – 3 years and 29 days
* Item 18e (Total Service for Pay) – 3 years and 29 days 
* Item 27 (Remarks) - 81 days of lost time under Title 10, USC, section 972

21.  His medical records are not available for review with this case.  However, his available records show: 

   a.  He was issued a physical profile on 3 July 1975 while a member of the 333rd Signal Company.  He was found not medically qualified for full military duty due to chondromalacia patella, bilaterally.  His profile stated no crawling, no kneeling, no jumping over 5 feet, no parachute jumping, no running over 1/2 mile, no standing over 30 minutes, no walking or marching over 30 minutes without 
15 minute rest (periods), no stooping or squatting, and no driving of government motor vehicles.  

	b.  In 1977, he filed a claim with the VA in which he stated that he sustained a gunshot wound to his left knee in January 1974.  The available medical records (then) did not show he sustained a wound.  A search of Womack Army Hospital records failed to disclose evidence of a gunshot wound.  He was, however, issued a medical profile on 3 July 1975 for chondromalacia patella bilaterally.  The VA determined in January 1978 he was ineligible for VA benefits because of the conviction by the court-martial and the bad conduct discharge.  

	c.  Department of Justice records revealed he was arrested in January 1979 for resisting arrest and assaulting a police officer. 

22.  He provides: 

	a.  An extract of the Special Vietnam-era Review Programs (Amnesty) pertaining to the Ford Clemency program and 1977 Special Discharge Review Board.  

	b.  An executive summary, dated March 2012, prepared by multiple attorneys of the Veterans Legal Services Clinic to the Vietnam Veterans of America, in relation to personality disorder discharges.  

	c.  VA progress notes, printed on 8 February 2013, that show the diagnosis of PTSD and Personality Disorder (Not Otherwise Specified).

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

24.  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.  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.

25.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, that a member who is charged with an offense, for which he could be dismissed or given a punitive discharge, or who is under sentence of dismissal or punitive discharge, may not be referred for disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge, refers it for trial to a court-martial which cannot adjudge such a sentence, or suspends the sentence in the case of a Soldier already under sentence, the case may be referred for disability processing.

26.  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 27 shows mandatory entries.  One of those entries pertained to time lost under Title 10, USC, 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, USC, section 972, and periods of non-inclusive time after ETS will be entered.  Time lost under Title 10, USC, 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 entry date: 

	a.  The applicant enlisted in the Regular Army on 18 January 1973, not 30 April 1973 as his DD Form 214 shows.  Therefore, he is entitled to correction of item 15 of his DD Form 214 to show the date of entry as 18 January 1973. 

	b.  He was discharged on 19 August 1976.  The length of service between 18 January 1973 and 30 April 1976 is 3 years, 7 months, and 1 day.  However, the applicant had lost time of 81 (2 months and 21 days) days.  Lost time is not creditable and is subtracted from the total active service completed.  That is why he was credited with 3 years and 29 days of active service.  

2.  With respect to the character of service: 

	a.  The applicant was given a bad conduct discharge pursuant to an approved sentence of a general court-martial, which was warranted by the gravity of the offenses charged at the time.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

	b.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 

	c.  Given the applicant's undistinguished record of service (two instances of NJP, a bar to reenlistment, charges for an unauthorized weapon, one AWOL, pre-trial confinement, substandard performance, negative attitude, and conviction by a general court-martial), and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  He is not entitled to an upgrade of his discharge.



3.  With respect to the narrative reason for his separation: 

	a.  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.

	b.  Although his records contain a profile issued in July 1975, this profile did not translate to finding of unfitness.  It was for "chondromalacia patella, bilaterally" and not for a gunshot wound as he contends.  Not only is there no record of the applicant being injured by a gunshot wound, the commander's bar to reenlistment clearly states he was pending a court-martial for "an unauthorized weapon resulting in one individual, other than himself, being wounded."

	c.  There is no evidence that the applicant had a physical condition failing retention standards; therefore, there was no need for entering him in the disability system and convening a medical evaluation board.  

	d.  More importantly, however, is the fact that by regulation, a member who is charged with an offense, for which he could be dismissed or given a punitive discharge, or who is under sentence of dismissal or punitive discharge, may not be referred for disability processing.  Because the applicant was convicted by a general court-martial, he would not have been eligible to enter the Army disability evaluation system and could not have received a medical discharge.  

	e.  He was discharged pursuant to an approved sentence of a general court-martial.  Absent his violation of the UCMJ, there would have been no reason to prefer charges against him and try him by a court-martial.  The underlying reason for his discharge was his conviction by a court-martial.  The only valid narrative reason for separation permitted under that paragraph is "court-martial" which is correctly shown on his DD Form 214.  Therefore, he is also not entitled to change to the narrative reason for his separation.

4.  With respect to the lost time, 

   a.  The applicant was AWOL from 17 January to 5 February 1976 (20 days), confined by military authorities (pending disposition of court-martial charges) from 6 February to 6 April 1976 (60 days), and AWOL from 7 to 8 June 1976
(1 day) for a total of 81 days. 

	b.  By law and regulation, periods of being 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.  Therefore, he is also not entitled to this portion of the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  As for the issue of reconsideration of his earlier request for an upgrade of his bad conduct discharge, 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 decision of the ABCMR set forth in Docket Number AC77-03333, dated 5 October 1977, and AC77-03353A, dated 30 April 1980.

2.  As for the new issue (entry date), the Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting from item 15 of his DD Form 214 the entry "73-04-30" and adding the entry "73-01-18."  

3.  As for the new issues of disability discharge and lost time, the Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting his DD Form 214 to shows he was medically discharged and/or the removal of or credit for 81 days of lost time.



      _______ _   _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)                                         AR20140015892



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ABCMR Record of Proceedings (cont)                                         AR20140015892



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