ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 May 2019 DOCKET NUMBER: AR20170000607 APPLICANT REQUESTS: an upgrade of his under other than 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) * DD Form 214 ( Report of Separation from Active Duty) 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 AR20110001342 on 26 July 2011. 2. The applicant states: a. After his tour of duty in Vietnam returning service members were treated very poorly by civilians and there was no recourse they could take. In addition to this, they had complications with pay and racial tensions. When he found out that his mother had become very ill he felt he had fought for his country and now his family needed him more. He went absent without leave (AWOL) to care for his mother. When his mother recovered, he voluntarily turned himself in and waited to be discharged. b. In addition, he went on to serve honorably in the California Army National Guard. He was able to turn his life around and deal with the problems associated with his service in Vietnam. He is a carpenter by trade and is an active member in his church. He has never been in trouble with the law since the military and he has made amends for his mistakes and would like an upgrade to his character of service for this period. 3. A review of the applicant’s service records show: a. He enlisted in the Regular (RA) Army on 17 January 1967 and was discharged on 5 June 1968 with an under honorable conditions character of service. He reenlisted in the RA on 18 May 1970 and served in Vietnam from 29 October 1970 to 7 November 1971. b. He accepted nonjudicial punishment on/for: * 3 May 1971, for failing to go at the time prescribed to his appointed place of duty willfully disobeying a lawful order; his punishment included in part, reduction to E-2 * (AWOL) from 3 October 1970 to 6 October 1970, 18 April 1972 to 6 June 1972, 11 July 1972 to 12 July 1972, 24 August 1972 to 31 March 1973, 2 March 1974 to 12 March 1974, and 1 April 1974 to 9 April 1974. c. His Defense Counsel submitted a statement on behalf of the applicant. He stated the applicant started having problems within the Army when he returned back from Viet Nam. His commanding officer was racially prejudiced. The applicant was put in for promotion by his platoon sergeant and reenlistment by his enlistment noncommissioned officer, they were both turned down by his commanding officer. The applicant had a family of five kids, a wife, and a sick mom with six sisters (ages 5-15) to support. Since he couldn’t get a promotion or reenlist, he asked for a discharge, but that was also turned down. In order for the applicant to earn money he worked as a male nurse and as a musical entertainer, in addition to his Army duties. He wasn’t receiving the pay he was supposed to receive from the Army when he got back to the states. He went to the Finance office at Fort Ord several times, but he never received the correct amount of pay. He felt his military career was ruined and that he should return to his family. So he decided to leave military control. d. On 9 May 1973, he consulted with legal counsel who advised him of the nature of his rights under the Uniform Code of Military Justice at the various possible stages of the proceedings including those of appeal involved in a trial by court-martial; he was fully informed of the elements of the offense with which he is charge and the facts which must be established to sustain a findings of guilt; and counsel has explained the possible defense which appear to be available against the charges at this time. Following consultation, he requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: * he may be discharged under other than honorable conditions and furnished an undesirable discharge certificate. * he would be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veterans Administration and benefits as a veteran under both Federal and State law e. Consistent with the chain of command recommendations on 22 May 1973, the separation authority approved the applicant’s request for discharge. a. f. On 29 May 1973, he was discharged from active duty under the provision of AR 635-200, chapter 10. . g. His DD Form 214, shows an honorable character of service for 8 February to 19 June 1974. He completed 3 months and 21 days of active service during this period with 21 days of lost time 4. On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. In the absence of compelling reasons to the contrary, this program, known as the DOD SDRP, required a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, had been wounded in action, had been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual. 5. Per regulation, discharges under the provision of AR 635-200, chapter 10 (Discharge for the Good of the Service) are voluntary requests for discharge in lieu of trial by court- martial. 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 DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. Based upon the multiple UCMJ offenses, some of which included multiple lengthy AWOL offenses, as well as a lack of character evidence to show the applicant has learned and grown from the events leading to discharge, 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. 1535874 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. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. When a Soldier is discharged before ETS for a reason for which an honorable discharge is discretionary, the following considerations apply. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). b. 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. c. Chapter 10 of that regulation provides that a Soldier who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. 2. 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 1. 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.