ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 July 2019 DOCKET NUMBER: AR20180010261 APPLICANT REQUESTS: an upgrade of his under other than honorable (UOTHC) conditions discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant Letter * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and DD Form 214 (Report of Separation from Active Duty) 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: a. When he enlisted in 1969 there was a great feeling over him to serve in a great establishment and be apart of it, and make a goal of it. During basic training and advanced individual training he had no problems, then came Vietnam. That is when things got bad, he started drinking heavy worrying that he might not make it back home to his wife and son. He did not really know that his drinking was a problem at first and then it got worse, but through it all he managed to excel from private E-1 to specialist in Vietnam and came back to the states. He was stationed at Fort Meade, MD, however he was still away from his family. He was confused and drinking, and wanted to get his family there with him, but did not know how. He had no one he could talk to about his situation and problems. b. There is no other way to put this, but he went absent without leave (AWOL) and after he was found, he was discharged from the service. He had no idea this was going to happen, even though he spent a year in Vietnam, and reenlisted. After his discharge he earned an associate degree in data processing and computer technology, and worked as head custodian in Aiken county school district for 12 years and 10 years in Richmond county school district. He was a substitute teacher in both counties for about 8 years. He is a deacon, Sunday school teacher for youth 14-18 years old, and president of the usher ministry for about 10 years, and still serving. His intention was not to deceive the Army, but to make good of it. He has learned a lot from his mistakes and are trying to make amends every day of his life. He hopes the Board will understand and forgive him. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 7 January 1969. He served in Vietnam from 10 September 1969 to 17 September 1970. b. He was honorably discharged on 27 September 1969 for the purpose of immediate reenlistment. He was issued a DD Form 214 that captured his 8 months and 21 days of active service. c. He reenlisted on 28 September 1969. He completed his Vietnam tour and rotated back to Fort Meade, MD, and then Fort Rucker, AL. d. He accepted non-judicial punishment under the provisions of Article 15 on/for the following: * 27 April 1971, AWOL 10-14 April 1971, reduction to specialist four (SP4) (reduction suspended for 60 days) * 12 August 1971, on 10 August 1971 he disobeyed a lawful order and was disrespectful, forfeiture of $40 per month for 1 month and 7 days extra duty * 20 August 1971, on 18 August 1971 he failed to go to his appointed place of duty, forfeiture of $25 per month for 1 month and 4 days extra duty e. He was convicted by a special court martial (SCM) on/for the following: (1) 13 September 1972, AWOL from 1 November 1971 to 15 June 1972. He received forfeiture of $100 per month for 5 months and confinement with hard labor for 5 months. On 27 September 1972, the convening authority approved the sentence, however, the portion pertaining to confinement at hard labor for 5 months was suspended until 13 March 1973, at which time, unless the suspension is sooner vacated, the suspended portion of the sentence was remitted without further action. The applicant would continue to serve in the grade of specialist five (E-5) unless the suspension of the confinement was vacated, in which event, the applicant at that time would be reduced to the grade of private (PVT/E-1). (2) 2 May 1973, AWOL from 2-16 April 1973. He received reduction to PVT/E-1 and confinement with hard labor for 3 months. On 7 May 1973, the convening authority approved the sentence. On 6 July 1973, the unexecuted portion of the approved sentence pertaining to confinement at hard labor for 3 months was suspended until 1 August 1973, at which time, unless sooner vacated, the suspended portion of the sentence would be remitted without further action. f. DD Form 458 (Charge Sheet), dated 13 December 1973 shows court-martial charges were preferred against the applicant for being AWOL from 20 July – 11 December 1973. On 16 January 1974, he was referred to a SCM authorized to adjudge a bad conduct discharge (BCD). g. On 10 January 1974, his immediate commander recommended a trial by a SCM empowered to adjudge a BCD. On 11 January 1974, his intermediate commander recommended a trial by a SCM empowered to adjudge a BCD. h. On 11 January 1974, he consulted with counsel and was advised of his rights. Following consultation with legal counsel, he voluntarily requested a discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service. He submitted a statement in his own behalf. He further acknowledged: * he understood that if his discharge request was accepted, he could be discharged under other than honorable conditions with an undesirable discharge certificate * he could be deprived of many or all Army benefits and could be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of his rights and benefits as a veteran under both Federal and State laws and may encounter substantial prejudice in civilian life i. On 17 January 1974, he submitted a statement in his behalf. He stated the Army was fine and he could be a good Soldier but he still thought he should get out in order to solve his finance problem. j. On 1 and 4 February 1974, his immediate and intermediate commanders recommended that his request for a discharge for the good of the service be approved and he be issued an undesirable discharge. k. On 8 February 1974, the separation authority approved the applicant’s discharge for the good of the service with an undesirable discharge. l. On 7 March 1974, statement by the immediate commander, states the applicant was held past his expiration term of service of 27 September 1972 due to his court martial for being AWOL from 1 November 1971 to 15 June 1972. m. On 13 March 1974, he was discharged from active duty under the provisions of AR 635-200, chapter 10, for the good of the service with an UOTHC characterization of service. He completed 3 years, 10 months and 17 days of active service. He had a total of 470 days of lost time. His DD Form 214 shows he was awarded or authorized: * National Defense Service Medal * Vietnam Service Medal with four Bronze Service Stars * Vietnam Campaign Medal * Good Conduct Medal * Marksman Marksmanship Qualification Badge (M-16) 4. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 5. By regulation, AR 635-200, a Soldier 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. The issuance of a discharge under the provisions of chapter 10, AR 635-200, would have required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of a trial by court-martial. 6. In reaching its determination, the Board can consider the applicants’ petition in his service record IAW 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 multiple lengthy AWOL offenses which resulted in a large amount of lost time and a lack of corroborating evidence to the applicant’s statement concerning character evidence, 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 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, states that an honorable discharge is a separation with honor. Issuance of an Honorable Discharge Certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e, states that a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. c. Chapter 10 of this regulation provides that a Soldier who has committed an offense or offenses, the punishment for any of which, under the uniform code of military justice and the Manual for Courts-Martial (MCM),1969 (revised edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against him, regardless of whether the charges are referred to a court martial and regardless of the type of court martial to which the charges may be referred. The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court martial convening authority. An individual who is under a suspended sentence of a punitive discharge may likewise 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 (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. ABCMR Record of Proceedings (cont) AR20180010261 5 1