ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 May 2019 DOCKET NUMBER: AR20170002210 APPLICANT REQUESTS: an upgrade to 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) * Self-Authored Statement * National Personnel Record Center (NPRC) 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: a. As the only son and child on 17 April 1972, he was drafted into the controversial Vietnam War at the age of 20 years old. He was assigned to Fort Polk, LA. He had only received an 8th grade education. His mother was in prison, his father left and his grandparents raised him. He did not agree with the war and our country was not in any harm or danger to justify it necessary. To be in the military during this time he was criticized and looked down on by many including his family. He encountered unkind acts such as being spit on and called names. Later, he was granted leave to go home, his mother needed him and it had been a long time since he had seen her and he did not return to Fort Polk, LA. b. In 1973, he was taken to Fort Hood, TX, under the conditions that he would stay for 14 days and his request to go home would be granted without any conditions. He would always complain respectfully, never resisted and never spoke against his country. We had withdrawn from the war by this time, many men pardoned, granted amnesty, and given their citizenship back. It has been 45 years, and to this day his military records states other than honorable discharge even though he had no choice in being in the military. This doesn’t seem fair, he feels that all men drafted during this time should have been given a discharge better than other than honorable regarding this particular and war and reason. 3. The NPRC response letter date, 17 January 2017, to the applicant stated that the authority to review the facts and circumstances surrounding separation from the military service is a function of the various military service departments. To assist him in this process they provided him the DD Form 293, for him to forward to the appropriate address listed on the form. 4. A review of the applicant’s service record shows: a. He was inducted into the Army of the United States on 17 April 1972. b. His DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from 5 June 1972 and dropped from the rolls (DFR) as a deserter on 5 July 1972. He returned to military control on 31 July 1973. c. On 8 June 1971, the next of kin was notified and informed that the applicant had been absent without authority since 7 June 1972. She was asked if she knew of his whereabouts they urged her to encourage him to return to his command immediately. d. The two morning reports dated 6 July 1972 shows the applicant AWOL 7 June 1972 to 5 July 1972. e. His record contains a DA Form 3545 (Deserter Wanted by the Armed Forces) which shows he went AWOL on 7 June 1972 and was dropped from the rolls (DFR) on 7 July 1972. f. The DA Form 188 (Deserter Wanted by the Armed Forces) dated 20 July 1972 shows the applicant was AWOL on 7 June 1972 and DFR on 5 July 1972. g. The applicant underwent a medical examination on 31 July 1973 for separation and the examiner stated the he was qualified for separation. h. The applicant consulted with legal counsel on 3 August 1973 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service. He submitted a statement on his own behalf and he acknowledged: * the maximum punishment * he was guilty of the charge against him or of a lesser included offense which authorized a punitive discharge * he did not desire further rehabilitation or a desire to perform further military service * if his discharge was approved, he may be discharged under conditions other than honorable and the effects of the discharge * 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 laws i. His DD for 458 (Charge Sheet), dated 31 July 1973 court martial charges were preferred against the applicant for one specification of being AWOL from 6 June 1972 to 30 July 1973. j. On 10 August 1973, consistent with the chain of command recommendations, the general court martial convening authority approved the applicant’s request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service and directed he be issued an undesirable discharge certificate. k. On 17 August 1973, he was discharged from active duty under the provisions of AR 635-200, chapter 10, in-lieu of court martial, SPN 246, for the good of the service, his characterization of service is under conditions other than honorable. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 2 months, and 8 days of active service, and he had 419 days of lost time from 6 June 1972 to 29 July 1973. 5. Soldiers separated under AR 635-200, paragraph 10, in lieu of trial by court martial are assigned the Separation Code KFS in accordance with AR 635-5-1 (Personnel Separations – Separation Program Designators). 6. The RE Code associated with this separation is RE-3B which applies to persons who have lost time during their last period of service; ineligible for enlistment unless a waiver is granted in accordance with AR 601-210, (Regular Army and Reserve Enlistment Program) paragraph 3-8. 7. By law and AR 635-200, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits. The lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up. 8. By regulation, discharges under the provisions of chapter 10 of AR 635-200 provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 9. 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. Based upon the short term of service completed prior to a lengthy AWOL offense, as well as the lack of character evidence submitted by the applicant showing he has learned and grown from the events leading to his 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. 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. AR 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). b. Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharged because of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. c. Chapter 10 of the 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 maybe submitted after the 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. 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) AR20170002210 5 1