ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:   BOARD DATE: 24 June 2021 DOCKET NUMBER:  AR20210009180 
APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded. 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552), dated 16 August 2020 
. Department of Veterans Affairs (VA) letter, dated 10 August 2020 
. VA Form 21-4138 (Statement in Support of Claim), dated 16 August 2020 
FACTS: 
1. 
The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2. 
The applicant states he served in Vietnam for one and a half years and did it with pride.  He was cheated out of the medals he earned.  He was a very good Soldier before and during Vietnam.  He was told that after six years, his discharge would be changed to at least an under honorable conditions (general) discharge. He will come to the Board if needed. 

3. 
Following prior service in the Regular Army, the applicant reenlisted in the Regular Army on 20 May 1970.  He was honorably discharged on 18 February 1971, for the purpose of immediate reenlistment. He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period that confirms his service was characterized as honorable. 

4. 
The applicant reenlisted in the Regular Army on 19 February 1971. 

5. 
Item 44 (Time Lost) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows he was reported as absent without leave (AWOL), from on or about 25 March 1971 through on or about 5 April 1971. 

6. 
The applicant accepted non-judicial punishment on 17 June 1971, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 9 June 1971 through on or about 16 June 1971. 

7. 
The applicant served in the Republic of Vietnam for the second time, from on or about 26 June 1971 through on or about 20 March 1972. 

8. 
Before a summary court-martial on or about 12 June 1972, at Fort Riley, Kansas, the applicant was found guilty of being AWOL, from on or about 8 May 1972 through on or about 27 May 1972. The court sentenced him to reduction to the rank/grade of private first class/E-3 and forfeiture of pay for one month. 

9. 
The applicant accepted non-judicial punishment, under the provisions of Article 15 of the UCMJ, on the following dates for the indicated offenses: 


. on 22 March 1973, for being AWOL, from on or about 14 March 1973 to on or about 19 March 1973 
. on 17 August 1973, for failing to go at the time prescribed to his appointed place of duty, on or about 7 August 1973 
10. 
The applicant was reported as AWOL, from on or about 4 September 1973 through on or about 10 September 1973, and from on or about 17 September 1973 through on or about 9 November 1973. 

11. 
The applicant was apprehended by civil authorities and was returned to military control on 14 November 1973. 

12. 
The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, his DD Form 214 shows he was discharged on 12 December 1973, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service.  He was credited with two years, six months, and 19 days of net active service this period, and his service was characterized as UOTHC. 

13. 
The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no evidence that would indicate the contrary. 

14. 
The applicant provides a statement in support of claim, dated 10 August 2020, wherein he states that he went AWOL because of the way he was treated by his 


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company commander.  He was told that he could not wear his medals or get his 
promotions because he didn’t deserve them, and that he should have died in Vietnam. 
15. The Board should consider the applicant's overall record and statement in accordance with the published equity, injustice, or clemency determination guidance. 
BOARD DISCUSSION: 
After reviewing the application and all supporting documents, the Board found the relief was warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests.  The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board considered his service ratings while in Vietnam, his awards and decorations, and his statement for claim to the VA.  
The Board found sufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. Therefore, the Board found that the applicant’s case warrants clemency with an upgrade of his discharge to under honorable (general) conditions. 
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BOARD VOTE: 
Mbr 1 Mbr 2 Mbr 3 
XX XXX XX GRANT FULL RELIEF 
: : : GRANT PARTIAL RELIEF 
: : : GRANT FORMAL HEARING 
: : : DENY APPLICATION 
BOARD DETERMINATION/RECOMMENDATION: 
The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant’s DD Form 214 for the period ending 12 December 1973 showing his character of service as general, under honorable conditions. 
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. 
REFERENCES: 
1. 
Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 

2. 
Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or 

injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice require. 

3. 
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The version in effect at the time provided that: 


a. 
 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. 

b. 
 A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

c. 
 Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. A UOTHC discharge was normally considered appropriate. 


4.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 
a.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. 
b.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 
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