ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 August 2019 DOCKET NUMBER: AR20180009905 APPLICANT REQUESTS: An upgrade of his general under honorable conditions discharge to honorable. 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) * Self-authored statement 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 on his application that he was denied an early release for school which he was qualified for by the commander at Fort Ord Army Hospital. His reason was he did not want to waste his time on the paperwork necessary to accomplish the task and that he should wait for his discharge. He served his country voluntarily in both enlistment and Vietnam service. He served honorably up to the point where he was unfairly denied his request for an early release for school. He was very hurt and disappointed when he was turned down for his request for an early release for school. That decision by his commander at Fort Ord changed his whole direction in life and has had a direct impact on his life ever since. A change to an honorable discharge would go a long way toward restoring his respect and honor. 3. The applicant provides a self-authored statement: a. He joined the Army in May 1967 in order to both serve his country and to hopefully become a better person from the experience and to help the Vietnamese earn their independence. Unfortunately, he joined with two foster brothers on the so called buddy system and he never saw either of them again as they were separated before basic training. He served honorably for approximately 2 years and 9 months. b. Toward the end of a three year enlistment, he went on temporary duty to Okinawa to help unload cargo ships due to Okinawans stopping work and protesting Soldiers with malaria being brought to the island to the hospital for treatment. While in Okinawa, he became ill and went to the doctor on base and was diagnosed with influenza. A few trips back to the doctor, he had blood drawn and the sample came back with a trace of malaria. c. After treatment and he became stable he was transported to Fort Ord, CA Army hospital. He visited a friend in Covina, CA on his leave after Vietnam. He met a girl and the two of them visited the college there. He approached the commander and requested to apply for an early release for college. The commander replied that his records were lost on the way from Okinawa and that he was not going to waste time making a temporary file to help him get out on an early release. He was stunned, embarrassed and hurt that after serving his country for so long voluntarily and going to a war zone for a year just to be treated so poorly by an officer in the Army for asking for what he had earned through hard work. d. He went absent without leave (AWOL). Looking back it was a bad choice that has affected him in many ways. He is asking that a consideration of all the good time and hard work he performed throughout his voluntary service and to the Vietnam War effort that he is found worthy of a change from general to honorable. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 8 May 1967. b. He received non-judicial punishment under article 15 on/for: * 17 January 1968, failure to go to his appointed place of duty at the proper time on or about 15 and 16 January 1968, he was reduced to private/E-2 * 30 April 1968, failure to go to his appointed place of duty at the proper time on or about 22 April 1968 * 27 June 1968, failure obey a lawful order * 15 August 1969, failure to report to his prescribed place of duty on or about 8 August 1969 * 5 September 1969, failure to secure his weapon in the company arms room on or about 28 August 1969 and failure to report at the time prescribed to his appointed place of duty on or about 2 September 1969, he was reduced to private first class/E-3 c. On 26 August 1970, Special Court-Martial Order 1103, he was convicted by a special court-martial (SCM) of the charge AWOL: * on or about 7 January 1970 until on or about 24 March 1970 * on or about 6 April 1970 until on or about 25 May 1970 * on or about 2 June 1970 until on or about 30 June 1970 * on or about 11 July 1970 until on or about 21 July 1970 * on or about 31 July 1970 until on or about 3 August 1970 d. The court sentenced him to confinement at hard labor for three months, forfeiture of $30 per month for three months, and to be reduced to private. e. On 17 September 1970, the convening authority ordered the sentence approved and will be duly executed, but the execution of that portion thereof adjudging confinement at hard labor in excess of one and one-half months is suspended for three months. f. On 19 January 1971, he was convicted by a SCM of the charge AWOL, SCMO #23: * on or about 13 November 1970 until on or about 20 November 1970 * on or about 20 November 1970 until on or about 16 December 1970 g. The court sentenced him to confinement at hard labor for four months, hard labor without confinement for 30 days, restricted to A Company, 339th Engineer Battalion, Fort Lewis, WA for 30 days, and forfeiture of $127 per month for six months. h. On 2 February 1971, the convening authority ordered the sentence approved and will be duly executed. i. On 19 February 1971, the applicant was recommended to appear before a Board of officers convened under the provisions (UP) of Army Regulation (AR) 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) for the purpose of determining whether he should be discharged before the expiration of his term of service because of shirking in the form of being AWOL. j. On 19 February 1971, the applicant was advised that proceedings to discharge him from the service UP of AR 635-212, paragraph 6a(4) had been initiated. He was advised: * he may present his case before a Board of officers, submit statements on his own behalf and be represented by counsel before a Board of officers * he may waive the above and will be given an opportunity to consult with counsel prior to waiving any rights k. The applicant’s records are void of his election of rights with counsel and void of the record of proceedings from the Board of officers. l. On 4 March 1971, a memorandum from Headquarters, Army Training Center, Infantry, Fort Lewis, WA directed the applicant UP of paragraph 6a(4), Section I, AR 635-212 (separation program number (SPN) 386), be discharged from the military service by reason of unfitness. A General Discharge Certificate was to be furnished. m. On 8 March 1971, SCM order number 110, shows the unexecuted portion of the sentence to confinement at hard labor for four months, is suspended effective 9 March 1971, until 1 June 1971. n. On 9 March 1971, the applicant was discharged in the rank of private UP of AR 635-212 SPN 386 under honorable conditions. He completed 2 years and 19 days of service. 5. There is no record of the applicant applied to the Army Discharge Review Board. 6. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. 7. By regulation, AR 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 8. 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 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. He was discharged for serious misconduct and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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 635-200 (Personnel Separations – Enlisted Personnel) 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) 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. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 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 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) AR20180009905 7 1