ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: January 14, 2020 DOCKET NUMBER: AR20160018938 APPLICANT REQUESTS: an upgrade of his general discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statement 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 feels his discharge should be upgrade for his benefits and sense of justice. After he arrived home from Vietnam, he was assigned to the prison at Fort Ord, CA. During his training as a prison guard, he was required to show proficiency in weapons. As he held the shotgun given to me for practice, he was so overcome with emotion after his return from Vietnam and killing the enemy and then being asked to shoot at American Soldiers, he threw the shotgun down and departed absent without leave (AWOL) the next day. He was young and traumatized and he made a mistake. He paid for it with an Article 15. 3. Review of the applicant’s service records show: a. He enlisted in the Regular Army on 27 June 1969 and he held military occupational specialty (MOS) 76Y (Armor Supply Specialist). He was promoted to E-4 on 15 July 1970. b. He served in Vietnam from 11 December 1969 to 18 November 1970. c. On 4 May 1971, he accepted nonjudicial punishment for being AWOL from 5 April 1970 to 4 May 1971. His punishment consisted of reduction to pay grade E-3 and a forfeiture. He was reduced accordingly on the same day. d. Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he served in: * MOS 007 (Drill Sergeant) with Company X, Xst Battalion Xrd X__ X__ X__ (XXX) Brigade, Fort Ord, CA, from 16 December 1970 to 17 January 1971 * MOS 11B4H (Instructor) with XXX Committee Group, Fort Ord, from 18 January to 5 April 1971 e. His available record is void of the complete facts and circumstances surrounding his discharge. However, his record contains a DD Form 214 (Armed forces of the United States Report of Transfer or Discharge) showing he was released from active duty on 31 January 1972, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separation, paragraph 5-3 (Secretarial Authority), with a general, under honorable conditions characterization of service, by reason of SPN 21L, for good and sufficient reason as determined by Secretarial Authority. He was transferred to the U.S. Army Reserve (USAR) Control Group. He completed 2 years, 6 months, and 6 days of active service, with 29 days of time lost. This form also shows he was awarded/authorized the: * Nation Defense Service Medal * Vietnam Service Medal * Vietnam Campaign Medal * Sharpshooter Marksmanship Qualification Badge with Rifle Bar f. Letter Orders Number XX-XXXXXXX, issued by the USAR Components Personnel and Administration Center on 2 May 1975, announced his honorable discharge from the USAR, effective 1 June 1975. g. An advisory opinion was received from the Medical Advisor/Psychologist, Army Review Boards Agency, on 4 December 2019, in the processing of this case. The medical advisor reviewed the record for alleged medical condition(s) not considered during the separation physical process. The medical advisor reiterated the applicant’s period of service and stated review the electronic VA indicated the applicant did not have a service-connected disability rating. The available records indicated he did met medical retention standards with respect to behavioral health diagnoses in accordance with AR 40-501 (Standard of Medical Fitness). There was no diagnosed BH condition to consider with respect to mitigation of misconduct. h. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. The applicant did not respond. 5. By AR 635-200, enlisted members could be separated for the convenience of the Government by authority of the Secretary of the Army. 6. 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 RECOMMENDATION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board found relief was not warranted. Based upon the lengthy period of AWOL, as well as the advisory opinion’s finding that there was no diagnosed BH condition to consider with respect to mitigation of misconduct, as well as the lack of any rebuttal of those findings submitted by the applicant, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 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 635-200 (Personnel Separations – Enlisted Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. The regulation stated in: a. Paragraph 3-7 – an honorable discharge was a separation with honor and entitles 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 be clearly inappropriate. b. Paragraph 5-3 – members could be separation for the convenience of the Government under the authority by the Secretary of the Army. The discharge or release of any enlisted Soldier of the Army for the convenience of the Government would be in the Secretary’s discretion with issuance of an honorable or general discharge certificate, as determined by him. 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 (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 based on 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20160018938 4 1