ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  15 July 2019

	DOCKET NUMBER:  AR20180006091


APPLICANT REQUESTS:  an upgrade of his under other than honorable condition discharge to honorable.

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)

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 the offense which caused his under other than honorable condition discharge was minor.  His military service as a whole should be considered, including his badges and medals received.  He is a proud Vietnam Veteran with a Purple Heart.  He would like to leave the legacy of an honorable discharge for his family.  He served 1 year, 7 months and 2 days on foreign soil.

3.  The applicant’s service records shows:

	a.  He enlisted in the Regular Army on 2 August 1967.

	b.  He served in Vietnam from 18 December 1967 to 19 July 1969.  He was granted normal tour credit.

	c.  He received the Purple Heart for a facial wound on 11 April 1969.

	d.  On 24 December 1969, he accepted nonjudicial punishment for driving with excessive speed and driving carelessly.  His punishment, in part, consisted of extra duty and restriction.
	e.  Court-martial charges were preferred on 20 April 1970.  His DD Form 458 (Charge Sheet) indicates he was charged with:

* one specification of being absent without leave (AWOL) from 27 March 1970 to 14 April 1970
* one specification of failing to obey a lawful order by failing to maintain proper clearance, while driving a military vehicle

	f.  On 23 April 1970, he consulted with legal counsel and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 in lieu of court-martial.  In his request, he acknowledged:

* maximum punishment
* he understood if his discharge was accepted he could be separated with an under other than honorable conditions discharge and furnished an Undesirable Discharge Certificate
* he would be deprived of many or all Army benefits and that he may be ineligible for benefits by the veteran affairs (VA) and benefits of a Veteran under Federal and State law
* he elected to submit a statement on his own behalf

	g.  In his statement, he asked that the following factors be considered in determining the character of his discharge:

* he completed approximately thirty-three months of active service
* he served 18 months in Vietnam, was awarded the Purple Heart, Vietnam Service Medal, and the Vietnam Campaign Medal
* he had never been in any trouble prior to the end of his tour in Vietnam
* he had difficulties adjusting to stateside duty after his tour in Vietnam
* he should receive a general discharge based upon his overall record

	h.  On 15 May 1970, consistent with the chain of command recommendations the separation authority approved the applicant’s request for discharge.  He will be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.


	i.  On 15 May 1970, he was discharged from active duty.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of AR 635-200, chapter 10, with an under other than honorable conditions discharge.  He completed 2 years, 8 months, and 18 days of active service with 25 days of lost time.  It also shows he was awarded or authorized:

* Purple Heart
* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)

4.  By regulation, an individual who has committed an offense or offenses to which the punishment includes a punitive discharge may submit a request for discharge for the good of the service.  An Undesirable Discharge Certificate (under other than honorable conditions characterization of service) would normally be furnished to an individual who was discharged for the good of the service. 

5.  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 review of the application and all evidence, the Board determined relief is 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.  While one Board member voted to grant full relief based upon his wartime service, the majority of the Board agreed an under honorable conditions (General) character of service is warranted, as he did not meet the standards of acceptable conduct and performance of duty for Army personnel making him suitable for an Honorable characterization.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	X	:	GRANT FULL RELIEF

X	:	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 15 May 1970 showing his character of service as under honorable conditions (General).

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his character of service to show Honorable.
	 
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 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 of this regulation provides that a member who has committed an offense of offenses, the punishment for any of which, includes a bad conduct or dishonorable discharge may submit a request 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.  If warranted, however, the discharge authority may direct an honorable or general 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.  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, 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)	 AR20180006091


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