ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  18 July 2019

	DOCKET NUMBER:  AR20180003589


APPLICANT REQUESTS:  reconsideration of his previous request to upgrade his under other than honorable conditions discharge to an honorable conditions discharge and to appear before the Board. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), effective date 6 August 1969

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 AC87-10153 on 4 October 1989.  

2.  The applicant states he was set up for a general discharge.  His commanding officer said he would get a general, under honorable conditions discharge so he went absent without leave (AWOL) after having put up with it long enough.  When he turned himself in, they sent him to Fort Ord, California for discharge and that is when he received the undesirable conditions discharge.  They were told the undesirable conditions discharge would be changed after two years to a general, under honorable conditions discharge and that did not happen.  This all happened after he served honorable in Vietnam.  He desires to appear before the Board in Washington, D.C.  

3.  A review of the applicant’s service record shows:

	a.  He enlisted on 12 June 1968 in the Regular Army (RA).

	b.  On 6 August 1969, he was honorably discharged for immediate reenlistment.  His DD Form 214 reflects that the completed 1 year, 1 month, and 25 days of active service.  It also shows that he was awarded or was authorized the National Defense Service Medal and Expert Marksmanship Qualification Badge with Rifle Bar.

	c.  He immediately reenlisted in the RA on 7 August 1969.  

	d.  His DA Form 20 (Enlisted Qualification Record) reflects he was stationed in Germany from 6 November 1968 to 18 September 1969 prior to his assignment to Vietnam from 29 October 1969 to 28 October 1970.

	e.  He accepted nonjudicial punishment on/for:

* 29 December 1970, one specification of AWOL; his punishment included reduction to specialist/E-4 and extra duty and restriction for 30 days
* 6 January 1971, one specification of AWOL and one specification of breaking restriction; his punishment included forfeiture of three days of pay and extra duty and restriction for 14 days
* 28 January 1971, one specification of AWOL and one specification of breaking restriction; his punishment included reduction to private (PVT)/E-2, forfeiture of half a month’s pay, and extra duty and restriction for 30 days
* 1 September 1971, one specification of failing to go to his appointed place of duty; his punishment included forfeiture of seven days of pay and extra duty and restriction for 14 days

	f.  On 14 June 1971, he was tried by special court-martial charges for one specification of AWOL.  He was found guilty except for the specific time of “1305 hours”.  A military judge sentenced him to be reduced to PVT/E-1 and to be confined at hard labor for two months.  The military judge recommended to the convening authority that the confinement at hard labor for two months be suspended for an appropriate period.  On 21 June 1971 only so much of the sentence as provided for reduction to PVT/E-1 was approved and ordered executed.

	g.  On 17 August 1972, court-martial charges were preferred against him.  His DD Form 458 (Charge Sheet) indicates he was charged with one specification of AWOL from 2 March 1972 to 9 August 1972.

	h.  On 14 September 1972, after consulting with legal counsel, he subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  He acknowledged:

* maximum punishment
* he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions
* he would be deprived of many or all Army benefits
* he may be ineligible for many or all benefits administrated by the Veterans Administration
* he may be deprived of his rights and benefits of a veteran under both Federal and State laws
* he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge

	i.  The applicant included with this request for discharge a self-authored statement.  He explains that his problems started when he returned from Vietnam.  His first AWOL was for Christmas for which he was reduced, restricted, and fined.  His next AWOL occurred because he thought the punishment for the first AWOL was too much and he had gotten married.  He began to have marital issues and went AWOL.  The last occasion he went AWOL was for his father who was going to the hospital for an operation that they were unsure that he would live through.  He and his wife divorced and they discovered she was pregnant with his baby.  He does not look forward to going back to duty because of his problems at home.  He would stay in the service and work hard if he did not have problems or his people at home.  

	j.  On 28 September 1972, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation.  He would be discharged under the provisions of AR 635-200, chapter 10, with an undesirable discharge, and reduced to the lowest enlisted grade.

	k.  On 3 October 1972, he was discharged from active duty under the provisions of AR 635-200, chapter 10, and issued a under other than honorable conditions discharge.  His DD Form 214 reflects that the completed 3 years, 6 months, and 20 days of active service with 272 days of lost time from 4-4 January 1971, 17-23 January 1971, 16 February 1971 to 27 Mary 1971, 1 April 1971 to 2 June 1971, and 1 March 1972 to 8 August 1972.  It also shows that he was awarded or was authorized the:

* Vietnam Service Medal
* Vietnam Campaign Medal
* Combat Infantry Badge
* 2 overseas service bars

	l.  The applicant twice requested consideration before the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable.  The ADRN denied his request for an upgrade of his discharge.  The first request was closed on 25 August 1983 for failing to respond in the allotted time period.  The second request was denied on 18 February 1987.  However, discrepancies were discovered in his records and the discharge document originally issued to him.  DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) was issued correcting the discrepancies.

	m.  On 29 May 1990, the Army Board for Correction of Military Records determined that the applicant had not filed within the time limits prescribed and determined it was not in the interest of justice to excuse his failure to timely file.  However, this determination was made only after the Board had determined that no error or injustice existed and his application should be denied.  

4.  By regulation, an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  

5.  By regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR

7.  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:

The applicant's request for a personal appearance hearing was carefully considered.  In this case, the evidence of record was sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

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 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 lengthy and multiple periods of AWOL, as well as the failure to accept responsibility and show remorse for the events leading to his separation, 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 to amend the decision of the ABCMR set forth in Docket Number AC87-10153 on 4 October 1989.
	 
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 (AR) 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 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) states 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.

	c.  Chapter 10 (Discharge for the Good of the Service) states an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  An undesirable discharge certificate will normally be furnished an individual who is discharged for the good of the service

3.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

4.  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 the 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, 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 upgrade service characterization.  

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180003589


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