IN THE CASE OF: BOARD DATE: 20 July 2020 DOCKET NUMBER: AR20170017450 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 25 October 2017 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 was 20 years old at the time and did not own up to his mistakes or take responsibility. He has grown to be a better and more respectful man. 3. The applicant enlisted in the Regular Army on 22 September 1964. 4. Before a special court-martial on or about 18 May 1965, at Fort Jackson, SC, the applicant was found guilty of being absent without leave (AWOL), from on or about 31 March 1965 through on or about 18 April 1965. The court sentenced him to reduction to the rank/grade of private/E-1, forfeiture of pay for four months, and confinement at hard labor for four months (suspended). 5. The applicant served in the Republic of Vietnam from on or about 21 September 1965 through on or about 22 September 1966. 6. The applicant accepted non-judicial punishment on 9 September 1966, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without permission or authority from his unit, on or about 8 and 9 September 1966. 7. Before a special court-martial on or about 14 February 1967, at Fort Gordon, GA, the applicant was found guilty of being AWOL, from on or about 4 January 1967 through on or about 2 February 1967. The court sentenced him to forfeiture of pay for six months, confinement at hard labor for six months (suspended), and reduction to the lowest enlisted grade. 8. The applicant underwent a psychiatric evaluation on 8 March 1967, which found him mentally responsible and able to participate in board proceedings. He had no disqualifying mental defects sufficient to warrant disposition through medical channels. 9. The applicant was notified on 9 March 1967 of his immediate commander's intent to initiate separation actions against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), by reason of unfitness for military service. 10. The applicant acknowledged receipt of the proposed separation notification on the same date and acknowledged that he: * had been afforded the opportunity to be represented by counsel * elected not to submit statements in his own behalf * may be deprived of many rights and benefits as a Veteran under both Federal and State law * may encounter substantial prejudice in civilian life if he were issued an under honorable conditions discharge 11. The applicant's commander formally recommended his discharge under the provisions of Army Regulation 635-212, based on unfitness. The separation authority approved the recommended action on 24 March 1967 and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 12. The applicant was discharged on 4 April 1967, under the provisions of Army Regulation 635-212, and his service was characterized as UOTHC. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued notes he was awarded or authorized the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar. 13. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 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), then in effect, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. a. Paragraph 1-9d provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 1-9e provided that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. Army Regulation 635-212, then in effect, provided the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records, on 25 July 2018, regarding equity, injustice, or clemency determinations. a. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs 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 a discharge, which may be warranted on equity or relief from injustice grounds. b. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. c. 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) AR20170017450 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20170017450 5 ABCMR Record of Proceedings (cont) AR20170017450 4