ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 March 2020 DOCKET NUMBER: AR20180001182 APPLICANT REQUESTS: an upgrade of his character of service from under honorable conditions (general) to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Armed Forces of the United States Report of transfer or Discharge), effective13 March 1970 * Applicant's statement, dated 20 December 2017 FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, section 1552(b); however, the 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 told that after 10 years, the characterization of his discharge would be changed to honorable. It has been over forty years and no action has been taken. This error is preventing him from receiving an annual $500.00 property tax credit. 3. On 16 February 1966, he enlisted in the Regular Army and he served in Vietnam from 28 February 1968 through 17 February 1969. 4. A review of his record shows the following disciplinary actions/misconduct: * he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for being drunk and disorderly on 3 July 1967 * he was absent without leave (AWOL) from 20 December to 22 December 1969 * he was convicted by a Special Court-Marital, for the wrongful appropriation of a fan (two specifications) 5. The applicant was awarded Army Commendation Medal and the Combat Infantryman Badge during the period of his service. 6. On 13 March 1970, the applicant was released from active duty under the provisions of Army Regulation 635-200 (Personnel Separation-Enlisted Personnel), due to his expiration term of service. His DD Form 214 shows he received an under honorable conditions (general) characterization of service. 7. There is no indication that the applicant applied to the Army Discharge Review Board to request an upgrade of his character of service within that Boards 15-year statute of limitations. 8. The U.S. Army has never implemented a policy to automatically upgrade a discharge or character or service. Every case is individually decided based upon its merits when an applicant requests a change in their discharge based on an error or injustice. 9. Army Regulation 635-200 (Personnel Separations-Enlisted Personnel) states to issue an under honorable conditions (general) discharge when a Soldier's military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 10. The applicant provided a statement with his application that the Board should consider in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and regulatory requirements. The Board considered published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service to include service in Vietnam, the frequency and nature of his misconduct, a special court-martial conviction and the reason for his separation. 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 there was no error or injustice in the applicant’s discharge under honorable conditions (general) characterization of service. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 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. 12/3/2020 X 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (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, set forth the basic authority for the separation of enlisted personnel. a. 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. b. 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 on the basis of 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. //NOTHING FOLLOWS//