IN THE CASE OF: BOARD DATE: 15 April 2019 DOCKET NUMBER: AR20180000073 APPLICANT REQUESTS: a. His undesirable discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge; b. Restoration of his rank/grade to sergeant (SGT)/E-5; and c. Correction of his DD Form 214 (Armed Forced of the United States Report of Transfer or Discharge), for the period ending 27 September 1973, to show he entered active duty on 7 March 1968 instead of 7 July 1967. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Forms 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 20 December 2017, with self- authored statement * Unit Orders Number 41, issued by 517th Engineer Company (LE), Republic of Vietnam on 13 April 1969 * DD Forms 214, for the periods ending 6 March 1968 and 27 September 1973 * Supporting Statement from the Program Coordinator at Inner City Development Project – Neighborhood Opportunity Centers, dated 5 January 1975 * Supporting Statement, dated 22 January 1976 * Veterans Administration Regional Office (VARO) Adjudication Board Hearing, dated 22 January 1976 * VARO Administrative Decision, dated 6 February 1976 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: a. He extended his enlistment in September 1969, while in, and he was granted 30 days of leave for extending his service. He went on leave in November 1969. He was supposed to head back to on Christmas Eve but he went to the American Red Cross and asked if they could get his leave extended so he could be home for Christmas. Shortly thereafter, he received a telephone call from the Red Cross telling him his leave was granted through the holiday season. b. After the New Year, when he had not received any orders back to, he contacted the Red Cross again and inquired about his orders. He was directed to go to the nearest military installation and tell them what was going on so he could receive assistance getting back to. He reported to the Military Police Detachment in and was told by officials that they could not help him because he did not have any orders and he was not on any absent without leave (AWOL) or desertion list. He kept checking and he kept getting the same response. c. Agents from the Federal Bureau of Investigation came to his house and arrested him in September 1973. To this day, he does not know how he could have done anything differently. 3. The applicant enlisted in the Regular Army on 7 July 1967. He was honorably discharged on 6 March 1968, for the purpose of immediate reenlistment. He was issued a DD Form 214 for this period of service that shows his rank/grade as private first class (PFC)/E-3. 4. The applicant reenlisted in the Regular Army on 7 March 1968. He was promoted to the rank/grade of specialist four (SP4)/E-4 on 6 July 1968, and to the rank/grade of SGT/E-5 on 31 December 1968. 5. The applicant's official military personnel file (OMPF) contains a DD Form 553 (Absentee Wanted by the Armed Forces), dated 24 December 1969. This form shows that the applicant was reported as AWOL effective 23 November 1969. He was declared a deserter and remained absent until he was apprehended by military authorities and returned to military control on 28 August 1973. 6. The applicant's DD Form 458 (Charge Sheet) and subsequent discharge documents are not available for review in this case. However, his OMPF does contain a memorandum from the Commander, U.S. Army Training Center Engineer and, dated 21 September 1973, which shows he, as the separation authority, approved the applicant's request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial. He further directed the applicant be reduced to the lowest enlisted grade and be issued an Undesirable Discharge Certificate. 7. The applicant was discharged on 27 September 1973, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court- martial. His DD Form 214 confirms he was reduced to the lowest enlisted grade and was issued an Undesirable Discharge Certificate. However, item 17c (Date of Entry) of his DD Form 214 shows he entered active duty on 7 July 1967 instead of 7 March 1968. 8. Based on the separation authority's approval memorandum, it can be concluded that the applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 9. Army Regulation 635-200 provided the authority for the separation of enlisted personnel upon expiration of term of service; the authority and general provisions governing the separation of enlisted personnel prior to expiration of term of service; and the criteria governing the issuance of Honorable, General, and Undesirable Discharge Certificates. 10. The applicant provides a VARO Adjudication Board Hearing, dated 22 January 1976 and a VARO Administrative Decision, dated 6 February 1976. These documents show the VA concluded that based on the applicant's good service for 26 months, and resolving all doubts in the veteran's favor, his "under other than honorable conditions" discharge was not considered to be dishonorable for VA purposes. 11. The Board should consider the applicant's statement 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. 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 record, the Board agreed that the applicant's discharge characterization and reduction to the lowest rank was warranted as a result of the misconduct. His record shows DD Forms 214 with his correct service dates. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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, 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. c. Chapter 10 provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could have been submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an undesirable discharge was normally furnished to an individual who was discharged for the good of the service. 3. 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. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. a. 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. b. 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) AR20180000073 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180000073 6 ABCMR Record of Proceedings (cont) AR20180000073 4