ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 June 2019 DOCKET NUMBER: AR20170004565 APPLICANT REQUESTS: upgrade of his under other than honorable condition discharge to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) * Veterans Affairs Form 21-4138 (Statement in Support of Claim) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Transmittal Letter, State of Illinois, Department of Veterans Affair 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 he respectfully provides that he served as a Grunt, (Infantryman) during his entire 13-month tour in Vietnam. He served on the front lines observing horrific events on a daily basis. He was awarded the Combat Infantryman Badge for combat actions while assigned as a paratrooper with the 1st Battalion, 502nd (Airborne) Infantry Regiment of the 101st Airborne Division. He entered the military voluntarily while serving his entire tour in Vietnam without any cause for disciplinary actions. He was medevacked three times to the local field hospital for injuries sustained to his knees and then medevacked out of Vietnam to Fitzsimmons Army Hospital near Denver, Colorado as he suffered with malaria. After his treatment and discharge from Fitzsimmons Army Hospital, he failed to report to Fort Campbell as stated in his movement orders. He instead went home attempting to deal with the trauma he had experienced while assigned to Vietnam. He was apprehended in his hometown and sent to the stockade on three occasions. He lived with the mental challenges on a daily basis without any assistance. He is not proud of his unauthorized absences and understands the significance of his actions. It is his humble plea that the Board strongly consider his request for a discharge upgrade. He reemphasizes his clean record while assigned in Vietnam and openly admits he is ashamed of his bad judgement. He sincerely appreciates the Board’s time and consideration. 3. The applicant’s service records shows: a. He enlisted in the Regular Army on 12 January 1966. b. He served in Vietnam from 1 August 1966 to 24 July 1967. c. On 22 March 1968, the applicant was convicted by special court-martial for one specification of AWOL from 25 September 1967 to 18 February 1968. He was sentenced to forfeiture of $40.00 pay per month for five (5) months and confinement at hard labor for five (5) months. His confinement at hard labor was suspended for five (5) months by the Special Court-Martial Convening Authority. d. On 13 September 1968, the applicant was convicted by special court-martial for one specification of AWOL from 13 April 1968 to 24 August 1968. He was sentenced to forfeiture of $73.00 pay per month for six (6) months and confinement at hard labor for six (6) months. e. On 7 October 1968, the unexecuted portions of his sentence were suspended until 6 December 1968 unless sooner vacated. Effective 20 November 1968, all unexecuted portions of his sentence were remitted. f. On 25 January 1969, a Certificate of Unsuitability for Reenlistment was approved. His habitual misconduct (AWOL) was cited as the reason he was barred from reenlistment. g. On 27 January 1969, the applicant departed AWOL and was dropped from the rolls as a deserter on 5 February 1969. He returned to military control on or about 1 July 1969. h. On 11 July 1969, the applicant’s immediate commander notified the applicant of his intent to initiate action to discharge him from the Army under provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) by reason of unfitness. He advised the applicant of his rights. i. On 11 July 1969, the applicant acknowledged he had been notified of the pending separation action against him and he had been advised by counsel of the basis for the contemplated action to separate him for unfitness. He waived consideration of his case by a board of officers and a personal appearance before a board of officers. He did not submit a statement in his own behalf. He acknowledged that: * he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he understood that in the event of the issuance of an undesirable discharge, he might be ineligible for many benefits as a Veteran under both Federal and State laws and he may encounter substantial prejudice in civilian life j. On 29 July 1969, the applicant was given a psychiatric evaluation. The examiner determined he had the mental capacity to understand and participate in proceedings, and was mentally responsible. He was psychiatrically cleared for any administrative action deemed appropriate by the command. k. On 22 August 1969, the applicant was convicted by special court-martial for three specifications of AWOL from 12 January to 14 January 1969, from 20 January to 27 January 1969, and from 27 January to 2 July 1969. He was sentenced to forfeiture of $82.00 pay per month and confinement at hard labor for six (6) months in the Post Stockade at Fort Leonard Wood, MO. l. On 26 September 1969, the applicant’s correctional officer initiated action to separate him from the Army under the provisions of AR 635-212 due to unfitness. The correctional officer listed the applicant’s extensive history of misconduct and disregard for authority, court-martial convictions, bar to reenlistment and confinement as indicators of his complete loss to the service. He recommended the applicant be separated from the service with an undesirable discharge, prior to his expiration term of service. m. On 16 October 1969, consistent with the chain of command’s recommendations, the separation authority approved the discharge action under the provisions of AR 635-212 for unfitness. He was reduced to the lowest enlisted pay grade and issued an Undesirable Discharge Certificate. n. On 18 October 1969, the unexecuted portion of his sentence to confinement at hard labor for six (6) months was remitted. o. On 23 October 1969, he was discharged from active duty. He was discharged under the provisions of AR 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) by reason of unfitness with separation program number 28B (unfitness). His character of service was under conditions other than honorable. His DD Form 214 shows he completed 2 years and 21 days of military service with 403 days of lost time. It also shows he was awarded or authorized: * National Defense Service Medal * Vietnam Service Medal * Vietnam Campaign Medal * Combat Infantryman Badge * Parachutist Badge * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) * overseas service bar (1) 4. By regulation (AR 635-212), individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. An undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. 5. 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, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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) 635-212, set forth the policy for administrative separation for unfitness. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. 3. AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic policy for the separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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. 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. 4. 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) AR20170004565 5 1