ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 July 2019 DOCKET NUMBER: AR20180001536 APPLICANT REQUESTS: In effect, reconsideration of his earlier request for his under conditions other than honorable discharge be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2003085601 on 31 July 2003. 2. The applicant states he was a machine gunner and a tunnel rat. His boss said he had to be a tunnel rat again and he told him no and left for a while. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 18 April 1966. b. He accepted non-judicial punishment on 28 January 1967 for willfully disobeying a lawful order. He was reduced to private/E-2 (suspended). c. On 22 June 1967, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 3 May 1967 until 13 June 1967. He was sentenced to confinement at hard labor for 6 months (suspended), forfeiture of $64.00 pay for 6 months, and reduced to private/E-1. d. On 26 June 1967, SCMO #3, the convening authority approved so much of the sentence for forfeiture of $64.00 pay per month for 6 months and reduction to private/E-1. e. On 3 December 1968, SCMO #73, the applicant was convicted by a special court-martial of one specification of being AWOL from 2 October 1968 until 26 October 1968. He was sentenced to confinement at hard labor for 4 months, a reduction in pay grade to private/E-1 and a forfeiture of $101.00 per month for 4 months. f. On 14 December 1968, the convening authority approved the sentence and ordered it duly executed, by the execution of that portion thereof adjudging confinement at hard labor for 4 months is suspended for 4 months. g. DD Form 214 shows the applicant again went AWOL on 24 August 1969 and he remained absent until 31 January 1970. h. The applicant’s record is void of any separation documentation. However, his record contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged in the rank of private/E-1 on 13 April 1970, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel). He was furnished a separation program number of 246 (for the good of the service). He served 3 years, 4 months and 13 days of total active service. He had 223 days of lost time. He was issued an under conditions other than honorable character of service. 4. On 12 August 2003, the applicant was notified that the ABCMR denied his application. Again on 13 November 2014 ABCMR notified the applicant that his request for reconsideration was not received within one year of the ABCMR's original decision. As a result, his request for reconsideration did not meet the criteria outlined in AR 15-185 (ABCMR) paragraph 2-15b, and his request was returned without further action. 5. By regulation, Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part that a member who has committed an offense or offenses for which the authorized punishment includes 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. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. 6. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the short term of honorable service completed prior to a pattern of misconduct, including multiple lengthy AWOL offenses and a lack of mitigating evidence for the AWOLs submitted by the applicant, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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: 1. 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. 2. Prior to closing the case, the Board did note the administrative notes below from the analyst of record and recommended those changes be completed to more accurately depict his military service. 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): A review of the applicant’s service records shows that he is authorized additional awards not listed on his DD Form 214. As a result, amend his DD Form 214 to show the following awards: * Valorous Unit Award, Department of the Army General Order (DAGO) 52, 1974 * Meritorious Unit Commendation, DAGO 5, 1977 * Republic of Vietnam Gallantry Cross with Palm Unit Citation, DAGO 43, 1970 * Republic of Vietnam Civil Actions Honor Medal, First Class, DAGO 48, 1971 * 5 bronze service stars to be affixed to his already awarded Vietnam Service Medal 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) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. a. Paragraph 1-9d (Honorable discharge) states 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 Discharge) A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. ABCMR Record of Proceedings (cont) AR20180001536 4 1