ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 February 2019 DOCKET NUMBER: AR20160014134 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 (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 received an under other than honorable conditions discharge due to 4 periods of being Absent Without Leave (AWOL) that occurred during his enlistment. 2 AWOL periods were prior to his deployment to Vietnam and were due to him being afraid of going to Vietnam. He had heard and seen many things about the war in Vietnam and was running from those unknowns more than anything else. The second was due to the stress after his deployment and the things he saw while in country. There were definitely better ways to handle the situation, but he only knew how to run from his problems back then. He was young and stupid. He would like to get his discharge changed to a general, under honorable conditions, so he can be proud of the good service he provided his country. In Vietnam he was awarded a Bronze Star Medal for his efforts during Operation Rolling Thunder. 3. A review of the applicant’s service record shows the following on: * 17 June 1971 – he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 1 June 1971 to 10 June 1971 * 11 August 1971 – arraigned and tried by Special Court-Martial for one specification of violation of the UCMJ for being AWOL from on or about 30 June 1971 to on or about 28 July 1971 * 2 May 1972 – accepted NJP under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty * 13 September 1972 – DD Form 458 (Charge Sheet) was completed by the Commander A Company, Personnel Control Facility, Fort Leonard Wood, MO, charging the applicant with 2 specifications of AWOL from 18 August to 22 August 1972 and from 1 September to 8 September 1972 * 27 November 1972, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of AR 635-212. He cited his reasons as the applicant's record of AWOL’s. He advised the applicant of his rights * the applicant acknowledged receipt of the notification of his proposed separation action. He consulted with counsel who advised him of the basis for the contemplated separation and its effects, the rights available to him and the effect of a waiver of his rights. He made the following choices: o he waived consideration of his case and a personal appearance before a board of officers o he elected not to submit statements on his behalf o he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions or an undesirable discharge under conditions other than honorable was issued o he may be ineligible for many or all benefits as a veteran under both Federal and State laws * 30 November 1972 - he underwent a mental health evaluation. His DA Form 3822-R (Report of Mental Status Evaluation) shows he had normal behavior, was fully alert and oriented, with level mood and affect, he had clear thought process, normal thought content, and good memory. The physician endorsed the form confirming he had no significant mental illness; he was mentally responsible, could distinguish right from wrong, able to adhere to the right, he had the mental capacity to understand and participate in board proceedings. He met the retention standards prescribed in chapter 3, of AR 40-501 (Standards of Medical Fitness) * Subsequent to this acknowledgement, the applicant’s immediate commander initiated separation action against him in accordance with AR 635-212. He cited his reasons as the applicant's poor attitude, unwillingness to serve, and excessive lost time. His intermediate commander recommended approval of an Undesirable Discharge Certificate * On 16 December 1972, the separation authority approved the applicant’s separation in accordance with AR 635-212, and ordered the applicant discharged and issued an undesirable discharge * On 21 December 1972, the applicant was discharged. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows in: o item 13a (Character of Service) "Under Conditions Other Than Honorable" o item 11c, AR 635-212, "Frequent Involvement in Incidents of a Discreditable Nature with Military Authorities" o item 30 (Remarks) 50 days lost time 4. Army Regulation (AR) 635-212 (Personnel Separations – Unfitness and Unsuitability) sets forth the basic authority for eliminating enlisted personnel who are found to be unfit or unsuitable for further military service. 5. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The Board agreed the applicant should request a review of his awards and decorations resulted from service in RVN. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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. ___________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 (AR) 635-212 (Personnel Separations – Unfitness and Unsuitability) sets forth the basic authority for eliminating enlisted personnel who are found to be unfit or unsuitable for further military service. An individual is subject to separation under the provisions of this regulation when there are frequent incidents of a discreditable nature with civil or military authorities. 3. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. ABCMR Record of Proceedings (cont) AR20160014134 5 1