ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 2 April 2019 DOCKET NUMBER: AR20160011673 APPLICANT REQUESTS: The 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) * DD Form 214 (Certification Release of Discharge) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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. On 4 January, 1967 the applicant entered active duty and served in Germany and Vietnam from 31 May 1968 through 15 August 1969. The applicant states that he made a few bad decisions after returning from his deployment to Vietnam. At the same time, his mother had passed away. He further stated that he was going through so many emotions that he could not control. 3. On 26 August 1970, the applicant was charged with two counts of being absent without leave (AWOL) for 22 April 1970 through 21 May 1970, and 27 May 1970 to 29 June 1970. 4. On 30 September 1970, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel), Chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, Chapter 10. He acknowledged he could be ineligible for many or all Army and/or Veterans Affairs Benefits. He signed a request for discharge for the Good of the Service and indicated he would submit statements in his own behalf. The statement said in the effect: a. The applicant was initially assigned to Germany from June of 1967 to May of 1968 and this is where is problems began. He contends that he reenlisted to return to an assignment to the United States and not stay in Germany nor being sent to Vietnam. b. As part of his reenlistment, he would go to his Military Occupational Specialty (MOS) school of choice. The next thing he notices is that he has assignment orders for Vietnam. c. The applicant stated that he showed his reenlistment contract to different individuals but he was getting sent to someone else. When he realized that he was not going to his MOS producing school, he extended his tour and went home on special leave. While there, he met his fiancée and his mother was very ill at the time. As a result, he spent all his money. d. He stated that he deployed to Vietnam from May 1968 to August 1969 and received a Bronze Star Medal (BSM) and an Army Commendation Medal (ARCOM), (A review of the applicant’s records do not support the claim of BSM; however, it does reflect an ARCOM). His record shows he was court-martialed on three other separate occasions for being AWOL: * 13 July 1969 o 8 April 1969 through 19 May 1969 * 9 December 1969 o 14 October 1969 through 4 November 1969; * 26 February 1970 o 1 January 1970 through 9 January 1970 o 4 February 1970 to 9 February 1970 o 14 February 1970 through 17 February 1970 5. On 26 October 1970, the applicant's appropriate separation authority approved the discharge and stated the applicant would be issued an undesirable discharge certificate and will be reduced to the lowest enlisted grade. 6. On 5 November 1970, he was discharged accordingly, his service was characterized as Under Other Than Honorable Conditions. His DD 214 shows he completed 3 years and 4 months Active Federal Service. His awards and decorations include the National Defense Service Medal; Army Commendation Medal; Vietnam Service Medal; Overseas Service Ribbon (2); Vietnam Campaign Medal; Republic of Vietnam Campaign Medal; Republic of Vietnam Civic Action Medal; and the Republic of Vietnam Cross of Gallantry. 7. The applicant submitted many character references from his family friends and associates. His siblings noted a change to include stealing, lying, rage, and physical aggression, all which impacted his employability and marriages. His friends and associates commented on his current positive character and charitable work. 8. A medical advisory opinion from the Army Review Board’s Agency Clinical Psychologist was provided on 2 January 2019 and states, in pertinent part, based on a thorough review of available medical records, the is insufficient evidence the applicant had a behavioral health condition that would mitigate the basis for separation. 9. The applicant records show that he was separated in accordance with AR 635-200, Chapter 10 in lieu of a Court Martial. His records also shows that he showed a pattern of misconduct as attested by the multiple infractions of misconduct. His records also showed that he deployed to and received many commendations in support of the Vietnam Campaign. 10. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. There was no evidence provided that shows he was diagnosed with a medical condition during his period of service that may have contributed to his misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X :X :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 for correction of the records of the individual concerned. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 Army Board for Correction of Military Records (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 600-200 (Enlisted Personnel Management System), in effect at the time, stated when the general court-martial authority determined that a Soldier was to be discharged from the service under other than honorable conditions he was reduced to the lowest enlisted grade. Board action was not required for this reduction. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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, BCM/NRs 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. //NOTHING FOLLOWS//