ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 May 2019 DOCKET NUMBER: AR20170006387 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * General Orders (GO) Number 10345, dated 17 October 1970 (Army Commendation Medal) * Department of Veterans Affairs (VA) document dated 9-11-2008 * DD Form 214 (Armed Forces of the United States Report of Transfer of Discharge) * Congressional correspondence 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 provides: * GO Number 10245, issued by Headquarters, 1st Aviation Brigade, awarding him the Army Commendation Medal for achievement in Vietnam from 6 April 1970 to 6 October 1970 * Letter from the VA indicating the applicant is entitled to VA benefits and a home loan 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 15 August 1969. b. He served in Vietnam from 26 March 1970 to 2 March 1971. He was promoted to specialist four/E-4 on 17 May 1970. a. c. On completion of his Vietnam tour, he was reassigned to Fort Ord, CA, in April 1971. d. His DA Form 20 (Enlisted Qualification Record) show she was absent without leave (AWOL) from 6 to 19 July 1971 and confined from 20 to 21 July 1971. He was again reported AWOL on 7 September 1971 and dropped from the Army rolls as a deserter on 5 October 1971. He returned to military control on 7 November 1971. e. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his service record contains a DD Form 214 that shows he was discharged from active duty in the rank/grade of private/E-1 on 23 December 1971, under the provisions of chapter 10 (in lieu of trial by court-martial) of Army Regulation 635-200 (Personnel Separations) with an under other than honorable conditions characterization of service. His DD Form 214 also shows: * he completed 2 years, 1 month and 11 days of active service with 78 days of lost time from 5 to 21 July 1971 and 7 September to 7 November 1971 * he was awarded or authorized National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and Marksmanship Badge (Rifle) 4. 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. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the multiple lengthy AWOL offenses, no character evidence presented by the applicant to show he has learned and grown from the events leading to the discharge, as well as a lack of evidence presented to show mitigating factors for the lengthy AWOLs, 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.. 5/23/2019 X CHAIRPERSON Signed by: 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 635-200 (Personnel 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 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 be considered, as well as the seriousness of the offense(s). b. Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it issued to a Soldier whose military record is satisfactorily but not sufficiently meritorious to warrant an honorable discharge. 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, 1. 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.