ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 July 2019 DOCKET NUMBER: AR20160018080 APPLICANT REQUESTS: in effect, a reconsideration for an upgrade of his under other than honorable discharge to a general, under honorable conditions. 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) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) FACTS: 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 AR20080015026 15 December 2008. 2. The applicant states that an enlisted noncommissioned officer (NCO) was in possession of his money in the amount of $1,200 and lost said amount during a gambling session. He feels he was unlawfully discharged due to his anger at this situation. The NCO in this situation did not receive any reprimand for his actions. He had just come back from overseas and his mental state was unstable due to his tour in Vietnam. He is currently seeking mental health treatment through the Veteran Administration (VA). His current health provider is the VA. He believes that a general, under honorable is warranted due to his mental health state at the time. 3. The applicant provides a copy of his DD Form 214 which shows (item 13a) character of service as under other than honorable conditions. 4. A review of the applicant’s active duty service record shows the following: a. He enlisted in the U. S. Army Reserves (USAR) on 9 February 1965. b. Orders 3-19, dated 2 March 1965, ordered the applicant to active duty on 18 March 1965 for period of 5 months. a. c. He accepted nonjudicial punishment (NJP) on 9 July 1965 for absence without leave (AWOL) from 9 July 1965 to 2400 hours to 9 July 1965, 0600 hours. d. Special Orders 161, dated 8 July 1965, released him from active duty on 17 July 1965. His DD Form 214 shows that he was released from active duty on 17 July 1965 with an honorable discharge. He completed 4 months of active duty service. e. Form 825 (Discharge from the United States Army Reserve), dated 16 February 1968, shows that he was relieved from the Army Reserve with an honorable discharge on 10 October 1967 for reenlistment in the Regular Army (RA). f. His DD Form 214, (item 10c) date inducted shows that he was inducted into the RA on 11 October 1967. It also shows that he was discharged on 10 June 1968 and completed 8 months of active duty service. g. He re-enlisted in the Regular Army (RA) on 11 June 1968 while serving in Vietnam. h. He accepted NJP for/on: * 27 June 1968 for drinking in the barracks to wit: on or about 25 June 1668 at 10pm; his punishment included reduction to private/E-2 * 27 December 1968 for AWOL from his appointed place of duty on or about 28 November 1968 * 19 January 1969 AWOL from his appointed place of duty to wit: guard mount on or about 1 January at 5:30pm; his punishment included reduction to private/E-2 * 18 February 1969 for failure to be at his appointed place of duty on or about 18 February at 1145hrs i. Special Court-Martial Order 106, dated 25 August 1969, shows the applicant was convicted of one specification of assault of an NCO, one specification of disobeying a lawful order by having a round in the chamber of his weapon, and one specification of leaving his post before he was properly relieved. The applicant was found guilty of all charges, confined at hard labor, reduced to the grade of private/E-1, forfeitures of $82 per month for 6 months. The sentence was adjudged on 28 July 1969. j. Special Court-Martial Order 40, dated 9 June 1970, show the applicant was found not guilty of one specification of disrespect to a commissioned officer and one specification of communicating a threat to a commissioned officer on or about 25 February 1970. The findings were announced on 7 May 1970. k. He accepted NJP on 3 September 1970 for being AWOL from 28 August 1970 to 2 September 1970. a. l. Court-Martial Order 49, dated 24 March 1971, convened a special court-martial to try such persons as may be properly brought before it. m. Special Court-Martial Order 63, dated 11 April 1971 found the applicant guilty of one specification of communicating a threat to a commissioned officer. n. Special Court-Martial Order 87, dated 20 December 1971, found the applicant guilty of one specification of communicating a threat to an NCO. The applicant was sentenced to be discharged from the service with a [bad conduct discharge]; to be confined a hard labor for 60 days and to be reduced to the grade of private/E-1 and to forfeit $450 pay per month for 3 months. The sentence was adjudged on 23 November 1971. Two previous convictions were considered. o. U.S Army Absentee Returned to Military Control memorandum, dated 10 July 1973, states this is an official notification that the applicant has returned to military control following a period of AWOL from the U.S Army. The applicant’s date of return is listed as 14 May 1973. p. Special Orders 71, dated 12 March 1974, states that the applicant having returned to military control from an AWOL status and having been dropped from the rolls of their organization as shown, is assigned as indicated to the Army Personnel Control Facility. q. He was discharged from active duty on 27 March 1974. His DD Form 214 shows that he was discharged with (item 13a) character of service as [Under Other Than Honorable Conditions Discharge], under the provisions of AR 635-5 (Personnel Separations – Separation Documents) with (item 11a) type of transfer or discharge annotated as Discharge TC 300 (Enlisted Discharge). Item 11c (Reason and Authority) is blank. Based on his re-enlistment documents, he had continuous honorable service from 9 February 1965 to 10 June 1968. It also shows that he served in Vietnam from 09 June 1968 to 24 September 1969 and from 24 September 1969 to 5 September 1970. He completed 3 years, 11 months, and 23 days of total active duty service with 256 days of lost time. r. A letter, dated 1 October 2018, from the case management division informs the applicant that his case has been put on hold by ABCMR so that he can provide a copy of the medical documents that support his unstable mental state. The applicant had until 31 October 2018 and no response was recorded. s. A request for medical review, dated 7 November 2018 was submitted to the ARBA clinical psychologist. t. An medical advisory opinion, dated 17 April 2019, states that a review of the applicants VA medical records returned with negative results nor any data that the applicant ever obtained medical support from VA. The psychological opinion states that a. there is no data to mitigate the applicant’s pattern of misconduct. The applicant was sent an Ex-parte letter, dated 22 April 2019. The applicant did not respond. 5. The applicant’s record is void of evidence that show he applied for a discharge upgrade with the Army Discharge Review Board within 15 years of the separation. 6. Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Separations) in effect at the time, sets forth the basic authority for the separation of enlisted personnel. 7. By regulation AR 635-5 (Personnel Separations – Separation Documents), paragraph 2-7 provides item by item instruction for entries on DD Form 214. Paragraph J (2b) states that item 9a (Type of Separation) is an enlisted personnel discharge (TC 300). 8. AR 40-501 (Standards of Medical Fitness), which governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. 9. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment. 10. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that partial relief was warranted. Based upon the pattern of misconduct, the advisory advisory’s finding that there was no medical condition to mitigate the misconduct, as well as the misconduct including threats of violence towards others, the Board concluded that the characterization of service received at the time of discharge was appropriate. However, the Board did note that the applicant had a period of prior honorable service which was not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict the military service of the applicant. 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: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 9 February 1965 to 10 June 1968.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge under other than honorable conditions. 5 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 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 (AR) 635-200 (Personnel Separations - Enlisted Separations) in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. 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. Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge c. chapter 1-5 of this regulation states that provides that a discharge certificate will be given to each lawfully inducted or enlisted member of the Army upon discharge from the Service. d. Chapter 3-11 of this regulation states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. 3. By regulation AR 635-5 paragraph 2-7(j) (Personnel Separations – Separation Documents) states provides item by item instruction for entries on DD Form 214. Paragraph j(2b) states that item 9a (Type of Separation) enlisted personnel discharge (TC 300). 4. AR 40-501 (Standards of Medical Fitness), which governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. 5. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are 1. separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment. 6. . DOD guidance, 25 July 2018, subject: Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity. Injustice, or Clemency Determinations, provides standards for Discharge Review Boards (DRBs) and Boards for Correction of Military /Naval Records (BCM/NRs) in determining whether relief is warranted on the basis of equity, injustice, or clemency. It states, in pertinent part: a. While not everyone should be pardoned, forgiven, or upgraded, in some cases, fairness dictates that relief should be granted. The Boards are trusted to apply this guidance and give appropriate consideration to every application for relief. b. This guidance does not mandate relief, but rather provides standards and principles to guide DRBs and BCM/NRs in application of their equitable relief authority. Each case will be assessed on its own merits. The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each board. c. Relief is generally more appropriate for nonviolent offenses than for violent offenses. d. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, DRBs and BCM/NRs should also consider, among other matters: • An applicant's candor • Severity of misconduct • Length of time since misconduct • Acceptance of responsibility, remorse, or atonement for misconduct • The degree to which the requested relief is necessary for the applicant • Character and reputation of applicant • Meritorious service in government or other endeavors • Evidence of rehabilitation • Availability of other remedies • Job history • Whether misconduct may have been youthful indiscretion • Character references