ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 April 2019 DOCKET NUMBER: AR20170009793 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge). 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 has been incarcerated since the early 1990s. Most of the Vietnam Veterans in prison now are drawing disability and they never made it through boot camp or fired a rifle. He is a Vietnam Veteran and was a sniper in the 196th Brigade of Americal Division. They were not very popular back then and had no help like they do today. He saw action and killed the enemy. He watched his buddies die. That should hold a little justification for consideration for an upgrade. He has had a few problems coming back and went absent without leave (AWOL) which got him the other than honorable conditions discharge. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 18 February 1970. b. He served in Vietnam from 6 August 1970 to 5 August 1971. c. He accepted nonjudicial punishment on 29 July 1970 for being AWOL from 17 July 1970 to 28 July 1970. d. His record contains a DA Form 3545 (Deserter Wanted by the Armed Forces) which shows he went AWOL on 12 October 1971 and was dropped from the rolls (DFR) on 19 October 1971. a. e. His record also contains a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), which shows he was apprehended by the Federal Bureau of Investigation on 19 March 1974 and returned to military custody. f. A DA Form 4187 (Personnel Action) was completed on the application on/for: * 20 March 1974, returning him to duty from DFR * 20 March 1974, placing him in military confinement g. The facts and circumstances surrounding the applicant’s discharge are unavailable for the Board to review. However, his record contains a DD Form 214 (Report of Separation from Active Duty) which shows he was discharged from the Army on 22 May 1974. It also shows in: (1) Item 9c (Authority and Reason), Paragraph 10-1 (Discharge for the Good of the Service), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). (2) Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized): * Vietnam Service Medal with two bronze service stars * Combat Infantryman Badge * Republic of Vietnam Campaign Medal (3) Item 27 (Remarks), 900 days lost under 10 U.S. Code 972. 4. By regulation, an individual 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriately. 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. 1. 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 rlief was not warranted. Based upon the short term of service prior to multiple AWOL offenses, and one that ended by apprehension, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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. 5/1/2019 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. b. Paragraph 1-13b (General discharge) states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. c. Paragraph 10-1 (General) states 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. An under other than honorable discharge certificate normally is appropriate for a member who is discharged for the good of the service. However, the discharge authority may direct an honorable or general discharge, if such are merited by the member’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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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 on the basis of equity, 1. an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct.