ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 June 2019 DOCKET NUMBER: AR20170010921 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). 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 AR20040011579 on 31 August 2005. 2. The applicant states he served his first enlistment with honorable service. However, he started having personal issues during his second enlistment. This caused him to have a bad sense of judgment leading to him being absent without leave (AWOL). He has not been the same since returning from Vietnam. He knows that his actions were wrong and he is sorry. He hopes that he can be forgiven and his discharge upgraded. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 29 February 1968. b. He served in Vietnam from 31 August 1968 to 18 July 1969. c. He completed his first enlistment on 7 December 1969 and received an honorable discharge. He immediately reenlisted for an additional 6 years to be served concurrently with his first enlistment. d. On 15 December 1969, he accepted nonjudicial punishment for one specification of failing to go to his appointed place of duty and one specification of incapacitating himself for the performance of his duty as a result of previous indulgence of intoxicating liquor. His punishment included a reduction to corporal/E-4 which was suspended for 3 months. e. On 21 November 1975, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet) indicates he was charged with two specifications of AWOL from 18 July 1970 to 14 August 1975 and 22 August 1975 to an undetermined date. f. After consulting with legal counsel, he subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: * maximum punishment * he is guilty of the charge against him or of a lesser included offense * he did not desire further rehabilitation * he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions * he would be deprived of many or all Army benefits administrated by the Veterans Administration * he may be deprived of his rights and benefits of a Veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge g. The complete 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 outlines his reason for separation. h. On 20 May 1976, he was discharged from active duty under the provisions of AR 635-200, chapter 10. His DD Form 214 shows he completed 2 years, 5 months, and 19 days of active service with 2102 days of lost time from 18 July 1970 to 13 August 1975 and 22 August 1975 to 27 April 1976. It also shows that he was awarded or authorized: * National Defense Service Medal * Vietnam Campaign Medal with 60 Device * Army Commendation Medal * Vietnam Service Medal * one overseas service bar * Marksman Marksmanship Qualification Badge with Rifle Bar (M-14) 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. 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. Based upon the short term of service completed on this term of enlistment prior to the misconduct, the length of the two AWOL offenses and the lack of character evidence submitted by the applicant to show that he has learned and grown from the events which led to his separation, 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. 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 – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 (Discharge for the Good of the Service) states 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. An undesirable discharge certificate will normally be furnished an individual who is discharged for the good of the service 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 the 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, 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 upgrade service characterization. ABCMR Record of Proceedings (cont) AR20170010921 4 1