ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 July 2019 DOCKET NUMBER: AR20170016088 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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, after his enlistment he became unsure of how he felt about the conflict in Vietnam, and was convinced he would be stationed there. He was unable to justify dying in a country we should never have been in. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) for three years on 8 February 1971. b. DA Form 20 (Enlisted Qualification Record) block 38 shows that on 11 April 1971 advance individual training (AIT), Fort Lee, Virginia. c. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, the record contains: (1) DA Form 188 (Extract of Morning Report), dated 30 June 1971, that shows he was absent without leave (AWOL) on 1 June 1971, and dropped from rolls on 30 June 1971. (2) On 1 November 1971, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service. In his request for discharge, he acknowledged his understanding that if his discharge request was accepted, he would be furnished an undesirable discharge certificate, deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could encounter substantial prejudice in civilian life by reason of an undesirable discharge. He was advised of the implications attached to the discharge and understood he may be discharged under other than honorable conditions. He was advised he could submit any statements he desired in his own behalf, which he did submit. He consulted with his counsel, who fully advised him in the matter. The applicant’s statements show him admitting: * he went AWOL four months from Fort Lee * he went AWOL one and a half months from Fort Polk * he hated the Army in the worst way and would not return to active duty * he had no reason for staying in the Army, and he would not stay (3) On 2 December 1971, consistent with the chain of command recommendation, the separation authority approved the applicant’s discharge and directed he be issued an undesirable discharge (DD Form 258a) for the good of the service, and reduction to the lowest enlisted grade prior to discharge. d. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged from active duty on 9 December 1971 in accordance with chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), for the good of the service, with an under other than honorable conditions discharge. He completed 8 months and 25 days of active service. 4. By regulation, AR 635-200, Soldiers are subject to separation under the provisions of chapter 10, for the commission of an offense or offenses, the punishment for any of which, under the UCMJ and Manual for Courts-Martial includes a bad conduct or dishonorable discharge. An under other than honorable conditions discharge was an appropriate and authorized characterization of service. 5. The applicant's record is void of evidence that shows he applied for a discharge upgrade with the Army Discharge Review Board within 15 years of the separation. 6. 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 relief is not warranted. The applicant’s contentions 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the short term of honorable service completed prior to a lengthy period of AWOL, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. AR 635-200 (Personnel Separations), in effect during the applicants era of service, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d provides that an honorable discharge is a separation with honor and issuance will be conditioned upon proper military behavior and proficient performance of duty during the current enlistment. b. Paragraph 1-9f provides that an undesirable discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service. d. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses 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. 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) AR20170016088 3 1