ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 May 2019 DOCKET NUMBER: AR20170009079 APPLICANT REQUESTS: reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge. He also requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement * DD Form 4 (Enlistment Contract - Armed Forces of the United States) * DD Form 20 (Enlisted Qualification Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Statement from X____ X____ * Letter from pastor, Reverend X____ X____, dated 4 June 2012 * Letter from National Personnel Records Center, dated 15 May 2017 * VA Form 21-0958 (Notice of Disagreement) * VA Form 21-526 (Veteran’s Application for Compensation and/or Pension) * VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative) * Standard Form 88 (Report of Medical Examination), dated 23 December 1969 * Standard Form 89 (Report of Medical History), dated 23 December 1969 * Standard Form 603 (Health Record (Dental)) * Congressional Privacy Act Release Form 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 AR20120017545 on 28 March 2013. 2. The applicant states he needs status upgraded for medical reasons. At the time of resignation he had put in for a 1049 to return to Vietnam but it was denied. In hindsight he sees he was wrong in resigning. He details his experiences of having his close 1. friend killed in front of him in Vietnam. Also he details the hard times after that situation and how it spiraled him downward. See attached detailed letter. 3. The applicant provides: * Self-authored statement detailing his events while in Vietnam and his difficult time afterwards * Statement from X____ X____describing the difficult marriage to the applicant and times after he was discharged * Letter from Reverend X____ X____dated 4 June 2012, describing the time he knew the applicant and the applicant’s need for assistance from the Veterans Administration (VA) * Letter from National Personnel Records Center, dated 15 May 2017, writing to Honorable X____ X____ reference the applicant’s application * Notice of Disagreement for Department of Veterans Affairs (DVA) * Veteran’s Application for Compensation and/or Pension for DVA * Appointment of Veterans Service Organization as Claimant’s Representative for DVA * Report of Medical Examination, dated 23 December 1969 * Report of Medical History, dated 23 December 1969 * Congressional Privacy Act Release Form to Congresswoman X____ X____, undated 4. A review of the applicant’s service records show the following: a. He enlisted in the Regular Army on 30 January 1970. b. On 15 October 1970, Summary Court-Martial Order Number 974, found him guilty of being absent without leave (AWOL) from 1 September to 13 October 1970. He was sentenced to confinement at hard labor for 30 days, forfeiture of $88.00 pay per month for 1 month, and reduction to the pay grade of E-1. c. On 29 October 1970, Summary Court-Martial Order Number 1038, directed the unexecuted portion of the sentence to confinement at hard labor be suspended for 90 days, at which time, unless the suspension is sooner vacated, the unexecuted portion of the sentence to confinement will be remitted without further action. d. Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he arrived in Vietnam on 30 October 1970. Item 38 (Record of Assignments) shows he was dropped from the rolls (DFR) of his unit in Vietnam as a deserter on 28 June 1971. e. On 20 August 1971, he accepted non-judicial punishment (NJP), for being AWOL from 29 May to 9 July 1971 and from 15 to 17 August 1971. His punishment included reduction to private first class/E-3. a. f. On 20 March 1972, DD Form 458 (Charge Sheet), shows court-martial charges were preferred against him for one specification of AWOL from 17 September 1971 to 24 February 1972. g. On 21 March 1972, he consulted with counsel and was advised of the contemplated trial by court-martial for an offense punishable by a bad conduct or a dishonorable discharge. Subsequent to that, he requested discharge under the provisions (UP) of chapter 10, for the good of the service – in lieu of trial by court-martial Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel). He also acknowledged the following: * he understood that as a result of his request he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under Federal and State law * understood he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge h. He provided a personal statement regarding administrative elimination with his request for discharge, dated 21 March 1972, wherein he stated, in a way he liked the Army, but in another way, he thought he should be released from the Army because of mental status toward some military personnel. He further stated his dislike toward the discharge he would receive, and stated that before any real damage is caused to himself or someone, he would prefer to be released from the Army. i. On 28 March 1972, his immediate commander recommended discharge under the provisions of chapter 10 of AR 635-200. j. On 28 March 1972, his battalion commander recommended disapproval of discharge under chapter 10 of AR 635-200, and opted for a court martial action to continue. If sentenced to confinement, upon successful completion of that training reassign the applicant to Vietnam or Korea. k. On 11 April 1972, the separation authority approved separation for the good of the service. He directed the applicant be discharged with an under other tan honorable conditions characterization of service and the issuance of an Undesirable Discharge Certificate. The applicant was reduced to the lowest enlisted grade effective 11 April 1972. l. On 18 April 1972, he was discharged under the provisions of AR 635-200, chapter 10, with an under conditions other than honorable in the rank of private/E-1. He served 1 year, 11 months, and 25 days with lost time from 1 September to 30 October 1970, a. 29 May to 30 June 1971, 19 September to 16 October 1971, and 1 to 9 July 1971. He was awarded or authorized: * National Defense Service Medal * Vietnam Service Medal with 1 Bronze Service Star * Vietnam Campaign Medal with 60 device * Overseas Bars (two) * M16 Expert Badge 5. On 26 June 1973, The Army Discharge Review Board determined the applicant was properly discharged. The request for a change in the type and nature of his discharge was denied. 6. On 3 June 1976, the applicant was notified that the Board for Correction of Military Records on 31 March 1976 determined that insufficient evidence has been presented to indicate probable material error or injustice, and the application was denied. 7. By regulation, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 8. By regulation (AR 635-200), a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. An Undesirable Discharge Certificate would normally be furnished an individual who was discharged 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 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 a short term of service completed prior to multiple lengthy AWOL offenses, one of which occurred prior to his Vietnam service, 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200 (Personnel Separation – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service. b. Paragraph 3-7a provides that 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. a. c. Paragraph 3-7b provides that 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.