ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 July 2019 DOCKET NUMBER: AR20180007447 APPLICANT REQUESTS: an upgrade of his under conditions other than honorable discharge to a general under honorable conditions APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) * DD Form 214 (Armed Forces of the United States Report or Transfer or Discharge) * self-authored statement * DA Form 20 (Enlisted Qualification Record) 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: a. When he went to Vietnam in 1966 he had just returned from Germany and his wife was pregnant with their second child. He wrote his congressman to ask if he could get his leave extended until his wife had the baby. However, it was time for him to return to Vietnam, so he did. He was in Vietnam for about 30 days when his wife lost the baby and he was allowed to return home, but she did not want him to go back. He told her he had to return, so he left. b. In 1967, he returned home to family trouble and he started drinking too much and no one would help them. In addition, his wife got pregnant again and he started missing formations and eventually got reduced in grade from SP5 to SP4. He was afforded 30 days of leave to go home for the birth of his baby. She did not want him to stay in the Army, so he decided to not return to the Army. This is a decision he regrets, but it was his decision. 3. A review of the applicant’s service record shows: a. He enlisted in the Army National Guard on 12 June 1961. b. He was discharged from the National Guard on 4 July 1962. c. He enlisted in the Regular Army on 26 November 1962. d. He served in Germany from 5 March 1963 through 13 March 1964 and from 28 December 1965 through 8 June 1966. He also served in Vietnam from 15 July 1966 through 12 Jul 1967. e. He accepted/receive non-judicial punishment (NJP) on/for: * 4 August 1964 for failing to repair and also for failing to report * 11 April 1967 for violating a lawful order by being apprehended by the military police in town before normal curfew hours * 17 April 1968 for leaving his appointed place of duty without permission. Also for being off post in fatigues * 1 May 1968 for not appearing at his appointed place of duty * 27 May 1968 for failing to go to his appointed place of duty; his punishment consisted of reduction to E-4 * 8 July 1968 for failing to go to his appointed place of duty on or about 4 July 1968 and 5 July 1968. f. On 27 September 1968 he was dropped from the rolls. g. The complete facts and circumstances surrounding his discharge are not available to the Board for review with this case. However, Special Court-Martial Order Number 433 found him guilty for absenting himself from his unit on or about 27 August 1968 through 6 March 1969. His sentence consisted of hard labor for 4 months and forfeiture of $97.00 per month for 4 months. h. On or about 30 April 1969 he was reported as AWOL until 24 June 1974. i. He was discharged on 29 August 1974 under the provisions of Army Regulations (AR) 635-200, Chapter 10. He was issued a discharge certificate of under conditions other than honorable and reduced to the lowest grade Private/E-1. j. His DD Form 214 shows he completed 7 years, 1 month and 10 days of total active service with 657 days of lost time. 4. On 15 August 1977, the Army Discharge Review Board (ADRB) reviewed the applicant’s discharge processing and found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 5. By regulation, a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. 6. The Board should 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 pattern of misconduct, which concluded with a multi-year AWOL offense, the Board concluded that the characterization of service received at the time of separation 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: 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. 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 or 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) is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security. c. Paragraph 1-9f (Undesirable Discharge) states an undesirable discharge is an administrative separation from the Service under conditions other than honorable. It may be issued for unfitness, misconduct, homosexuality, or for security reasons. d. Chapter 10 of this regulation 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. 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 (BCMNRs) 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 court-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 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. 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. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. ABCMR Record of Proceedings (cont) AR20180007447 4 1