ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 August 2019 DOCKET NUMBER: AR20180009947 APPLICANT REQUEST: * an upgrade of his under conditions other than honorable discharge * correction of his DD Form 214 (Armed Forces of the United States Report of Transfer of Discharge) to reflect the requested change APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 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 AR20150017958 on 6 July 2017. 2. The applicant states: a. He is requesting an adjudicated update for the Veterans Affairs. He served honorably, earned the Purple Heart with 2 Bronze Stars. He decided to go absent without leave (AWOL) and when he came home, he knew he had made a mistake, but he could not handle being in the United States Army during that period of time. b. He would like to use his health benefits and he is requesting that his DD Form 214 be upgraded to an honorable for that reason. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 29 September 1965. b. He served in Vietnam from 14 July 1967 to 14 July 1968. c. On 21 March 1966, he was convicted by special court-martial order number 98 of one specification of departing his unit in an AWOL status on 7 February 1966 and remained absent until 1 March 1966. His sentence was forfeiture of $60 pay for 6 months and confinement at hard labor for 6 months. The convening authority approved the sentence on 22 March 1966. d. On 23 June 1966, he was convicted by a special court martial number 197 of one specification of AWOL from his unit on or about 29 May 1966 and did so without proper authority, and did remain so remain so on or about 14 June 1966. The court sentenced him to confinement to hard labor for 6 months and forfeiture of $60 pay per month for six months. On 24 June 1966, the convening authority approved the sentence and directed it be duly executed. e. On 18 July 1966, he was convicted by special court-martial order number 231 of one specification of escape from lawful confinement on or about 30 June 1966 in the post stockade, at Fort Sill, OK. His sentence was forfeiture of $64 pay for 6 months and confinement at hard labor for 6 months. The convening authority approved the sentence on 28 July 1966. f. On 26 June 1967, he was convicted by a summary court martial order number 5 of one specification of AWOL from his unit on or about 1 June 1967 and did so without proper authority, and did remain so remain so on or about 11 June 1967. The court sentenced him to reduction to the grade of private/E-1, performance of hard labor without confinement for one month, and forfeiture $64 pay per month for one month. Only the forfeiture of $64 per month for one month and reduction to the grade of private/E-1 is approved and duly executed on 26 June 1967. g. On 10 October 1968, he accepted non-judicial punishment for departing his unit for being AWOL status on 9 October 1968 and did so until 10 October 1968. His punishment included reduction to private/E-2, forfeiture of $75 for 2 months and restriction to his unit for 45 days. h. On 15 April 1969, the appellate rendered a decision which states the unexecuted portion of the approved sentence to confinement at hard labor for four months, forfeiture of $70per month for 6 months and reduction to the grade of private/E-1, Court-Martial Order Number 96 adjudged on 11 February 1969, promulgated in Special Court- Martial Order Number 96, Headquarters, United States Army Infantry Center Troop Command, Fort Benning, GA, 13 February 1969, not subsequently modified, is remitted effective 21 April 1969. i. On 11 February 1969, he was convicted by a special court martial number 96 of one specification of AWOL on or about 28 October 1968 and did remain so on or about 6 January, 1969. The court sentenced him to confinement at hard labor for six months, reduction to the grade of E-1, forfeiture of $70 per month for 6 months. Confinement at a. hard labor for 4 months in the post stockade, forfeiture of $70 per month for 6 months is approved and duly executed on 13 February 1969. j. On 7 March 1969, the applicant’s immediate commander notified him that he was initiating separation actions against him under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge Unfitness and Unsuitability) for an unfitness discharge. k. The applicant acknowledged he had been notified of the pending separation action against him on 11 March 1969 and he had been advised by his consulting counsel of the basis for the contemplated action. Having been advised by counsel that day, he waived his rights to consideration of his case by the board of officers, his personal appearance before the board and he waived is rights to representation. He did not submit statements on his own behalf. l. Consistent with the chain of command recommendations, the separation approval authority approved the applicant’s request for discharge for the good of the service on 4 December 1975. He would be issued an Undesirable Discharge Certificate. m. He was discharged from active duty on 21 April 1969 with an under conditions other than honorable characterization of service. His DD Form 214 shows he completed 2 years, 3 months and 16 days of net service with 462 days of lost time. It also shows he was awarded or authorized the: * National Defense Service Medal * Vietnam Service Medal with 2 Bronze Stars * Vietnam Campaign Medal with Device 1960 * Army Commendation Medal * 2 Overseas Bars * Marksman Marksmanship Qualification Badge with Rifle Bar (M14) 4. The applicant applied to the Army Board for Corrections of Military Records in Docket Number AR20150017958 and on 6 July 2017. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief of the correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty). 5. 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. An Undesirable Discharge Certificate will normally be furnished an individual who is discharged 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 for consideration of discharge upgrade requests, the Board determined that relief was not warranted. The Board considered the applicant's statement, his record of service to include service in Vietnam, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors to overcome his misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based upon a preponderance of evidence, to include the short term of honorable service completed prior to the start of a pattern of misconduct, the Board concluded that the characterization of service received at the time of discharge was not in error or unjust. 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. 9/10/2019 X CHAIRPERSON Signed by: 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. Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), in effect at the time, set forth the policy for administrative separations for unfitness. a. Paragraph 3 (Policy) states action will be taken to separate an individual for unfitness when it is clearly established that: * Despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort is unlikely to succeed * Rehabilitation is impracticable (as in cases of confirmed drug addiction) or he is not amenable to rehabilitation measures (as indicated by the medical and/or personal history record) * An unfitting medical condition is not the direct or substantial contributing cause of his unfitness b. Paragraph 4 (Types of Separation) states an individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate except that an honorable or general discharge certificate may be awarded if the individual being discharged has been awarded a personal decoration or if warranted by the particular circumstances in a given case. 2. AR 635-200 (Personnel Separations - Enlisted Separations), currently in effect, sets forth the basic policy for separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states that 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 of 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. When a member’s service is characterized as general, except when discharged by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. 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 1. 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.