ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20170013955 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal) * Self-Authored Statement 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: a. He enlisted at the age of 17 and was sent to Vietnam after training. His parents contacted someone in the Army to get him out of Vietnam and after several contacts, they were successful. This is the time he was first exposed to heroin and marijuana. He had come from a small town in Michigan and never been exposed to any form of illegal drugs. b. After he was removed from Vietnam, he was sent to Okinawa and still dealing with addiction to heroin. His addiction began to affect his work and he started receiving Article 15’s for performance infractions. This lead to him having periods of being absent without leave (AWOL). He escaped the stockade for the second time and was then given an under other than honorable conditions discharge. c. He is not condoning his behavior nor skirting his responsibility. However, he knows now that if he had not been exposed to so much at such a young age, he would not be in this situation today. He realizes now what a mistake he was making and was ill-equipped to deal with the stress of combat and war at such a young age. If he were to do it all over again, he would not make the same mistakes. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 8 September 1966. b. He served in Vietnam from 30 April 1967 to 6 June 1967 and in Okinawa from 8 June 1967 to 15 December 1968. c. He accepted nonjudicial punishment on/for: * 6 March 1967, for being AWOL from 3 March 1967 to 6 March 1967 * 6 April 1967, for being AWOL from 3 April 1967 to 5 April 1967 * 26 April 1967, for being AWOL from 15 April 1967 to 25 April 1967 * 15 June 1967, for failing to have his identification card * 28 June 1967, for willfully disobeying a lawful order * 16 February 1968, for breaking restriction d. He was convicted by summary court-martial on 8 February 1968 of one specification of breaking restriction. He was sentenced to forfeit $70 per month for one month and to be restricted to the company area for 30 days. e. He was convicted by special court-martial on 2 May 1968 of two specifications of being AWOL from 19 February 1968 to 1 April 1968 and from 4 April 1968 to 8 April 1968. He was sentenced to reduction to private/E-1, confinement at hard labor for 6 months, and forfeiture of $68 per month for 6 months. f. He was convicted by special court-martial on 11 July 1968 of one specification of being AWOL from 6 June 1968 to 13 June 1968. g. On 8 August 1968, his immediate commander recommended the applicant for separation under the provisions of Army Regulation (AR) 635-212 (Discharge Unfitness and Unsuitability). h. The complete facts and circumstances surrounding the applicant’s discharge are unavailable for the Board to review. However, his record contains a memorandum, subject: Review of Discharge, dated 6 September 1968 which outlines his reason for separation. His immediate commander notified the applicant he was being discharged with an Undesirable Discharge Certificate. The applicant acknowledged receipt on the same date. i. He was discharged from active duty on 6 September 1968 under the provisions of AR 635-212 with an under other than honorable conditions characterization of service. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year, 4 months, and 29 days of active service with 221 days lost time. It also shows he was awarded or authorized the National Defense Service Medal and the Vietnam Service Medal. 4. The applicant applied to the Army Discharge Review Board for an upgrade of his discharge and on 5 August 1981, his request was denied. 5. By regulation, action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort is unlikely to succeed when the following conditions exist: * frequent incidents of a discreditable nature with civil or military authorities * drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana * an established pattern of shirking * an established pattern of showing dishonorable failure to pay just debts 6. In reaching it 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 short term of service completed prior to a pattern of misconduct, the Board concluded that the characterization of service received at the time of separation 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 (AR) 635-212 (Discharge Unfitness and Unsuitability), in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness and/or unsuitability. It states action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort is unlikely to succeed when the following conditions exist: • frequent incidents of a discreditable nature with civil or military authorities • sexual perversion • drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana • an established pattern of shirking • an established pattern of showing dishonorable failure to pay just debts 3. 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 1-9d (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. 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 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) AR20170013955 4 1