ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 August 2019 DOCKET NUMBER: AR20170018535 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. 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 served 16 months in Vietnam, received no counseling on return to stateside to include discharge date. Served honorably while deployed and earned rank of E-5. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 6 March 1970. He was discharged on 20 October 1970 for immediate reenlistment. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 7 months and 14 days active service. He reenlisted on 21 October 1970. b. He served in Germany from 25 July 1970 to 31 October 1970 and in Vietnam from 13 December 1970 to 18 April 1972. c. On 10 July 1972, he departed his unit in an absent without leave (AWOL) status and on 11 January 1973, he was dropped from the rolls as a deserter. He returned to military control on or about 19 January 1973. d. On 8 February 1973, he was convicted by a special court-martial of one specification of being AWOL from 10 July 1972 to 11 January 1973. The court sentenced him to reduction to E-1 and forfeiture of $100 pay per month for three months. The convening authority approved the sentence on 5 March 1973. e. According to his DD Form 458 (Charge Sheet), dated 28 March 1974, court- martial charges were preferred against him for two specifications of AWOL from 3 September 1973 to 20 February 1974 and 24 March 1974 to 27 March 1974. f. The applicant consulted with legal counsel and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service in lieu of trial by court-martial. In his request for discharge, he indicated: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA) * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws g. He wrote a self-authored statement admitting to his AWOL from his unit and stated he wanted out of the Army because he did not agree with the principles of a peace time Army nor the all-volunteer Army. He felt that he gave his country three years of service and he did not think that he or the Army would benefit from further service. He understood that under the provisions of chapter 10, AR 635-200, he may receive an undesirable discharge. h. On 5 April 1974, his commander recommended approval of the applicants request for discharge and issuance of a DD Form 258a (Undesirable Discharge Certificate). i. On 15 April 1974, the separation authority approved the applicant's request for discharge and ordered his service be characterized as under other than honorable conditions and he be issued an Undesirable Discharge Certificate, and reduced to the lowest enlisted grade of E-1 (if applicable). j. The applicant was discharged on 22 April 1974. His DD Form 214 confirms he was discharged under the provisions of AR 635-200, chapter 10 – for the good of the service with a character of service as under other than honorable conditions and he was issued an Undesirable Discharge Certificate. He completed 3 years, 1 month, and 18 days of active service with 363 days of lost time. k. He submitted an application requesting his undesirable discharge be upgraded. On 18 October 1974 the board determined that insufficient evidence was presented to indicate probable material error or injustice, and the application was denied 4. By regulation,(AR 635-200) an individual who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, 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 relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense guidance for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board considered the applicant's statement, his record of service to include service in Vietnam, the nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found no in-service mitigating factors and the applicant did not express remorse or provide character reference statements or evidence of post-service achievements for the Board to consider in support of clemency. Based on a preponderance of evidence and the multiple periods of lengthy AWOL, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct and not in error or unjust. 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. 8/29/2019 CHAIRPERSON 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) provides that 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) provides that 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. When a member's service is characterized as general, except when discharged by reason of misconduct, unfitness, unsuitability, homosexuality or security, the specific basis for such separation, will be included in the individuals military personnel record. c. Chapter 10 of that regulation provides, in pertinent part, an individual who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against him, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. 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//