ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	 

	BOARD DATE:  12 February 2019

	DOCKET NUMBER:  AR20160014143


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to an Honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	Applicant’s statement 
*	Statement from former sister in law

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.  The applicant states he was treated unjustly while trying to do his best to return from 
an emergency leave to his duty station in Vietnam.  He contends in 1968 the American 
Red Cross assisted him in returning home from Vietnam due to a dire family emergency 
involving his wife at the time.  His wife was sending him letters stating she hoped he 
was killed so she could receive the insurance money and also causing problems within 
the family.  He attempted to return back to Vietnam several times; once through 
California as well as Fort Lewis. 
   a.  While attempting to return to Vietnam through California, he was told he would 
have to pay an additional $970 cash that he did not have; at a later date he was told the 
same thing.  
b.  He then eventually found transportation to Fort Lewis, WA by a family member 
and was told he would have to pay $730.  The applicant requested to speak with the 
base commander.  The base commander tasked him out for five days after which he 
quoted the same amount in reference to sending him back to Vietnam and forced the 
applicant to leave the post with money to get home.  He was later picked up for being 
AWOL and taken to Fort Belvoir, VA to do hard labor.  While there, he states being 
harassed by a black guard.  The guard continuously put his shotgun in his face.  The 
applicant states that this continued and he told the guard that if continued he was going 
to take it from him and put it up his a___.  This continued so the applicant took the 
weapon and jumped off the vehicle they were on and began to run into a corn field after 
being shot at.  He believes if the guard would have left him alone he would have stayed 
there.  The applicant states that if it was the other way around what would have been 
said.  

       c.  The applicant feels as though he was done wrong because they wanted him to 
pay for his own return to Vietnam.  He tried very hard to return to duty but was not able 
to due to them not letting him go.  He does not believe he was treated justly when he 
was trying his hardest to get back to his duty station.   He was trying to do something 
good for the Army although he was a young man and had never been away from home.  
The discharge has been bothering him and affecting him for many years, as he now 
request an upgrade after recently finding out that an upgrade of his UOTHC discharge 
is possible.   

3.  On 28 August 1967, at the age of 18, the applicant enlisted in the Regular Army.   

4.  His enlisted qualification record shows on 21 April 1968, he was assigned to 573rd 
Service and Support Company, Republic of Vietnam.

5.  A record of time lost shows:

     a.  On 25 August 1968 his duty status changed from present for duty to absent 
without leave (AWOL) as a result he was confined for a total of 14 days. 

     b.  On 13 December 1968 his duty status changed again from present for duty to 
AWOL, as a result he was confined for a total of 77 days.

     c.  On 27 May 1969 his duty status changed once again from present for duty to 
AWOL for 154 days.     

8.  On 12 November 1969 he was charged for being absent without authority from on or 
about 27 May 1969 until on or about 28 October 1969.

9.  On 24 November 1969, the applicant received a physical and psychiatric 
examination which shows he was diagnosed with no significant psychiatric disease and 
cleared for administrative action. 

10.  On 26 November 1989, 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 signed a request for discharge for the Good of the 
Service and indicated he would not submit statements in his own behalf.

   a.  The applicant's chain of command recommended approval of his request and the 
appropriate separation authority approved the applicant's request.  
   
   b.  The appropriate authority approved the applicant’s request for the good of the 
service, directing the applicant be given an Undesirable Discharge Certificate (DD Form 
258A). 

10.  On 6 January 1970, he was discharged accordingly.  His DD Form 214 shows he 
completed 1 year, 4 months, and 1 day of total active service, has 375 days lost time 
and does not show any authorized awards.    

12.  The applicant provides a hand written letter from D___ W___ in support of his 
application.  The letter states while the applicant was in Vietnam his wife wrote negative 
letters hoping he would die so that she could collect his life insurance.  While she 
continued to cause trouble within the rest of the family, he decided to go home to get 
the situation settled through the Red Cross.  On his way back to Vietnam, he was told 
that he needed pay over $900.00 to get back; he didn’t have the amount.  

       a.  The applicant called D___ W___ father for assistance in which he told the 
applicant to come to Washington.  Once he arrived they went to Fort Lewis, WA and 
was told by a Captain there were no beds for him to stay but could be given a mattress 
to sleep in the hall.  He left and came back the next day to hear the same thing but from 
a Colonel.  While at Fort Lewis, the applicant requested to get a flight to Vietnam and 
was told no so he went back to his home.  Once he returned requesting a flight back to 
Vietnam he was escorted off Fort Lewis and told not to come back.

       b.  The applicant decided to contact his parents for assistance.  Once he returned 
to Fort Lewis, he was told there was no record of him and D___ W___ ever being there.  
Soon after that the applicant’s father called the family informing them that he was in the 
brig in Virginia during that time the applicant’s parents had moved to North Carolina.  
He ended up in Fort Bragg, NC and was court martialed with a bad conduct discharge.

13.  On 15 August 2018, an advisory opinion was received from the Army Review 
Boards Agency (ARBA) Psychologist. It states, it is the opinion of the agency 
psychiatrist that the applicant has a Behavioral Health condition (PTSD) which is 
mitigating for his misconduct.  His records support the existence of PTSD at the time of 
discharge. . 

15.  On 17 August 2018, the applicant was provided a copy of the advisory and given 
the opportunity to submit comments.  He did not respond.

16.  Army Regulation 635-200 states 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.

17.  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:

JUSTIFICATION:  Based upon the medical advisory finding a nexus between the 
misconduct and the medical condition of the applicant, the Board determined relief was 
warranted – General, under Honorable Conditions

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:X	:X	:X	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 amending his DD Form 
214 to show his characterization of service as General, under Honorable Conditions.
	  
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 635-200 sets forth the basic authority for the separation of enlisted 
personnel.  It provides:   

	a.	A Chapter 10 is applicable to a member who has committed an offense or 
offenses for which the authorized punishment included a bad conduct or dishonorable 
discharge could submit a request for discharge for the good of the service.  The request 
could be submitted at any time after the charges had been preferred and must have 
included the individual’s admission of guilt.  Although an honorable or general discharge 
was authorized, an under other than honorable conditions discharge was normally 
considered appropriate.

     b.  An honorable discharge is a separation with honor. The honorable 
characterization is appropriate when the quality of the Soldier’s service has generally 
met standards of acceptable conduct and performance of duty for Army personnel.  

	c.  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.

3.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR.  
The regulation provides that 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.
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 of the ABCMR may grant a formal hearing whenever justice requires.  
Additionally, applicants may be represented by counsel at their own expense.

4.  On 3 September 2014 the Secretary of Defense directed the Service Discharge 
Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records 
(BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical 
considerations and mitigating factors when taking action on applications from former 
service members administratively discharged UOTHC and who have been diagnosed 
with PTSD by a competent mental health professional representing a civilian healthcare 
provider in order to determine if it would be appropriate to upgrade the characterization 
of the applicant's service.

5.  On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and 
Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs 
and BCM/NRs when considering requests by veterans for modification of their 
discharges due in whole or in part to:  mental health conditions, including PTSD; 
traumatic brain injury (TBI); sexual assault; or sexual harassment.  Standards for review 
should rightly consider the unique nature of these cases and afford each veteran a 
reasonable opportunity for relief even if the sexual assault or sexual harassment was 
unreported, or the mental health condition was not diagnosed until years later.  Boards 
are to give liberal consideration to veterans petitioning for discharge relief when the 
application for relief is based in whole or in part on those conditions or experiences.  
The veteran’s testimony alone, oral or written, may establish the existence of a 
condition or experience, that the condition or experience existed during or was 
aggravated by military service, and that the condition or experience excuses or 
mitigates the discharge.

6.  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.  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.  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.
 

ABCMR Record of Proceedings (cont)	 AR20160014143
	
2

1