ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 June 2019 DOCKET NUMBER: AR20170006854 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) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * 8 Character reference Letters 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. 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 AR20150003157 on 11 February 2016. 3. The applicant states: a. When he was assigned to Fort Sill, OK, he was informed that all he had to do was sign his name and he would be discharge and he would be able to go home. He signed without really understanding what it was all about and had he known the final results, he would have stayed in and completed his time. b. He served in Vietnam and was awarded a Combat Infantry Badge. He remembers unloading six chinook helicopters full of bodies that had been in the jungle for a while and the smell has never left him. His attitude changed after he saw how many Soldiers were dying and wounded for nothing. He returned to the states and never could truly adjust. 4. He provides eight character letters from his minister and friends describing his character as hard-working, kind and having a strong belief in God (see attached). * his enlistment record and personnel qualification record * enlistment physical showing he was eligible for enlistment * 8 character reference letter from various individuals who describe him as: * a capable and dedicated professional * he helps seniors and children * he is thoughtful and caring * a productive citizen, father, and husband who loves his family and community * he is very involved in the church and the community * he is compassionate, honest and, focused * he is intelligent, sincere, and hard working * he is a mentor to underprivileged kids * Charge sheet and voluntary separation packet under chapter 10 5. A review of the applicant's service record shows: a. On 9 January 1970, he enlisted in the Regular Army. b. On 13 April 1972, he was convicted by a special court-martial of two specifications of AWOL (29 February to 21 March 1972) and (23 March to 12 April 1972). The court sentenced him to confinement at hard labor for 4 months and forfeiture of pay for 4 months. The convening authority approved it on 25 June 1971. c. On 18 October 1971, he accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 11 October to 15 October 1971. His punishment consisted of forfeiture of pay and restriction. d. On 29 February 1972, he underwent a physical which indicated he was in good health. e. On 5 June 1972, court-martial charges were preferred against him for two specifications of AWOL from 31 October 1971 to 17 February 1972 and 3 March 1972 to 25 May 1972. f. On 20 April 1972, he consulted with legal counsel and subsequently requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: * the basis of this trial by court-martial which could lead to a bad conduct or a dishonorable discharge, and maximum punishment * he had not been subjected to any coercion * he understood if the request for discharge is accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * he understood that, as a result of the issuance of such a discharge, he could be deprived of many of all Army benefits * he could be ineligible for many or all benefits administered by the Veterans' Administration * he could be deprived of his rights and benefits as a veteran under both federal and state law * he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge g. The chain of command recommended approval of his discharge with the issuance of an under other than honorable conditions discharge. h. On 9 May 1972, consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge. He would be reduced to the lowest enlisted grade and issued an Under Other Than Honorable Conditions Discharge Certificate. i. On 9 May 1972, he was discharged from active duty under the provision of AR 635-200, chapter 10. His time not verified. His lost time not verified. His service was characterized as under other than honorable conditions. He was awarded or authorized the: * National Defense Service Medal * Combat Infantryman Badge * Vietnam Service Medal 6. By regulation, a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 7. 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 and letters of support 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. The applicant did not show remorse for his misconduct or provide evidence of his contentions to mitigating factors for the Board to consider. One Board member voted to grant relief based upon the letters of support. The majority of the Board agreed that the applicant's discharge characterization was warranted as a result of the pattern of misconduct which included multiple lengthy AWOL offenses. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : 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, 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. 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) AR20170006854 5 1