ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 April 2019 DOCKET NUMBER: AR20180000238 APPLICANT REQUESTS: In effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his service is characterized as honorable in lieu of under conditions other than honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 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, in effect, he put his life on the line in Vietnam for his country. He has not asked anyone for anything, in the past. But now his health is bad and he hopes the decision to issue him a characterization of service of under conditions other than honorable will be over turned. 3. On 12 December 1967, he enlisted in the Regular Army 3 years. He attended basic and advanced individual training at. While attending training, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on: a. 20 February 1968, for leaving his unit in an absent without leave (AWOL) status from 13 to 15 February 1968. His punishment consisted of a forfeiture of pay and restriction. b. 27 March 1968, for failure to report to his appointed place of duty (revile formation) at the time prescribed on 26 March 1968. His punishment consisted of a forfeiture of pay, extra duty, and restriction. c. He completed the training requirements and he was awarded military occupational specialty 63B (Wheel Vehicle Mechanic). 4. He served in Vietnam from 15 February through 31 December 1970. On 23 November 1970, while in Vietnam, he accepted NJP for behaving with disrespect towards a commissioned officer by using profanity toward him on 15 November 1970. His punishment consisted of a forfeiture of pay, extra duty, and restriction. 5. Upon his return to the continental United States, he was assigned to Fort Leonard Wood, MO, on 28 February 1971. He accepted NJP on: a. 27 May 1971, for being AWOL from his unit from 5 to 7 April 1971. His punishment consisted of a forfeiture of pay, extra duty, restriction, and reduction to the rank of private first class (all suspended for 30 days). b. 2 June 1971, for being AWOL from his unit from 26 to 27 May 1971. His punishment consisted of a forfeiture of pay, extra duty, restriction, and reduction to the rank of private first class (suspended). c. 9 July 1971, for being AWOL from his unit from 22 to 23 June 1971 and from 1 to 7 July 1971. His punishment consisted of a forfeiture of pay and reduction in rank (suspended for 90 days). d. 31 August 1971, for absenting himself from his assigned place of duty (the motor pool) on 26 August 1971. His punishment was reduction to the rank of private first class. 6. A Report of Medical Examination, dated 21 January 1972, shows he was found medically qualified for separation. 7. On 18 January 1972, court-martial charges were preferred against the applicant for being AWOL from on or about 1 to 14 January 1972. 8. On 20 January 1972, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel). He acknowledged he had been afforded the opportunity to speak with counsel prior to making his request. He indicated he was submitting a statement in his own behalf. However, that statement is not in the available record for review. 9. The applicant's record does not contain all of the facts and circumstances surrounding the discharge process, however, it contains a 3rd Endorsement, subject: Request for Discharge for the Good of the Service, dated 20 January 1972, which shows the discharge for the applicant, under the provisions of Army Regulation 635-200, was approved. He would be furnished a DD Form 258 (Undesirable Discharge Certificate). This indorsement also states: * the applicant would be issued a letter barring him from the post * the complete Military Personnel Records Jacket would be hand carried to the Adjutant General Transfer Point, Building 241, on this date * the applicant would be processed for separation not later than three working days after the date of this indorsement * He would be reduced to private/E-1 10. His record contains a DD Form 214 that shows was prepared at the time of separation that shows on 17 February 1972, he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, with an Undesirable Discharge Certificate, in pay grade E1. He had completed 2 years, 7 months, and 23 days of active military service. His Enlisted Qualification Record shows he also had 525 days of lost time, due to being AWOL and in confinement. 11. Special Orders Number 47, Headquarters United States Army Field Artillery Center, , dated 16 February 1972, confirms effective 17 February 1972, he was separated with an Undesirable Discharge Certificate, for the good of the service. 12. The applicant's voluntary request for discharge under the provisions of Chapter 10, AR 635-200, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations. 13. His record shows he was separated due to receiving seven NJP’s and a court- martial charge. At the time of separation he had accrued 525 days of lost time. He enlisted for 3 years, served in Vietnam for 10 months and 17 days, and he completed more than two thirds of his service obligation, which is characterized as under conditions other than honorable. 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 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 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. 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 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, then in effect, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an Undesirable Discharge Certificate. b. 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 have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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. 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 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. 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. ABCMR Record of Proceedings (cont) AR20180000238 5 1