BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160003934 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160003934 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 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. BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160003934 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 request for upgrade of his under other than honorable conditions (UOTHC) discharge to a general, under honorable conditions discharge. 2. The applicant states that he was only 18 years of age when he was sent to Vietnam as an infantryman. He served in Vietnam for 9 months and the last month was very difficult. He saw a lot of men die, but he made it back home. a. He states that he was discharged based on possession of marijuana, possession of an identification card (that he found on the ground), and disobeying an order to return to battle. He also states that his arm was in a sling and he had a physical profile when he received the order. b. He adds that he served his country faithfully until he was discharged and he should not be continually punished for something that occurred 48 years ago. 3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), but no additional documentary evidence in support of his application for reconsideration. 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 AC97-10450 on 11 March 1998. 2. The applicant enlisted in the Regular Army on 27 July 1970 for a period of 3 years. At the time he was 17 years of age (3 months shy of his 18th birthday). a. He was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). b. He was promoted to the rank of private first class/pay grade E-3 on 19 November 1970. c. He was assigned to Vietnam on 11 January 1971. 3. On 28 July 1971, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ): * Article 90, for, on 8 June 1971, failing to obey a lawful order from his superior commissioned officer to proceed to the field and join his company in combat operations * Article 113, for, on 31 July 1971, sleeping while posted as a sentinel 4. On 7 August 1971, additional court-martial charges were preferred against him for violation of the UCMJ: * Article 134, for, on 24 June 1971, wrongfully having in his possession 8.4 ounces of marijuana * Article 92, for, on 24 June 1971, violating a lawful general regulation by wrongfully having in his possession a false identification card 5. On 18 August 1971, the applicant consulted with legal counsel. He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. a. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. By submitting his request for discharge he acknowledged that he was guilty of the charge against him or of a lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. b. He acknowledged he understood that, if his request for discharge was accepted, he might be discharged UOTHC and furnished an Undesirable Discharge Certificate. c. He was advised that he might be: * deprived of many or all Army benefits * ineligible for many or all benefits administered by the Department of Veterans Affairs * deprived of his rights and benefits as a veteran under both Federal and State laws d. He was also advised that he could submit statements in his own behalf. He submitted a statement in which he provided a brief summary of his civilian background and military service. e. The applicant and his counsel placed their signatures on the document. 6. The chain of command recommended approval of the applicant's request for discharge for the good of the service with an UOTHC characterization of service. 7. On 26 August 1971, the applicant underwent a medical examination for separation. He indicated that he was in good health. The examining physician found the applicant qualified for separation. 8. On 31 August 1971, the separation authority approved the applicant's request for discharge for the good of the service, reduced him to the lowest enlisted grade (E-1), and directed that he be furnished an Undesirable Discharge Certificate. 9. The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 7 September 1971 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He had completed 1 year, 1 month, and 11 days of net active service during this period that included 7 months and 26 days of foreign service. He was assigned Separation Program Number 246 (For the Good of the Service in Lieu of Trial by Court-Martial). His service was characterized as UOTHC and he was issued an Undesirable Discharge Certificate. 10. The applicant submitted an application to the Army Discharge Review Board (ADRB) requesting a review of his discharge. On 30 April 1974, the ADRB determined that the reason for his discharge and his character of service were both proper and equitable. Accordingly, the ADRB denied the relief requested. 11. On 16 August 1984, the applicant appealed the ADRB decision. The ADRB denied his appeal. REFERENCES: Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. 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 general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate. b. Chapter 3, 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. DISCUSSION: 1. The applicant contends that his request for upgrade of his UOTHC discharge should be reconsidered because he was young, he served honorably, and he should not be continually punished for something that occurred 48 years. 2. He also offers his original contention that his arm was in a sling when he disobeyed a lawful order from his commander to proceed to the field with his company on a combat operation. However, he provided no documentary evidence in support of this contention. The evidence of record argues against his (original) contention. 3. The evidence of record shows the applicant enlisted in the U.S. Army when he was 17 years of age. The applicant successfully completed training, he was awarded MOS 11B, and he attained the rank of PFC (E-3). There is no evidence indicating he was any less mature than Soldiers of the same age who successfully completed their military service obligations. 4. The applicant's request for discharge UP AR 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 5. The evidence of record shows that court-martial charges were preferred against the applicant for, in pertinent part, violation of the UCMJ, Article 86, for disobeying a lawful order from his commander to proceed to the field with his company on a combat operation while serving in the theater of operations during a period during which the United States of America was at war. a. He elected to request a discharge for the good of the service in lieu of trial by court-martial. b. He was reduced to the lowest enlisted grade (E-1) and he failed to complete his 3-year active duty service obligation. c. The entire chain of command recommended his service be characterized as UOTHC. d. Records show the period of service under review was characterized as UOTHC. e. The evidence of record shows an UOTHC discharge is normally considered appropriate for Soldiers discharged UP AR 635-200, chapter 10. f. The ADRB found his discharge and the character of his service were both proper and equitable. 6. The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003934 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003934 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2