ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 August 2019 DOCKET NUMBER: AR20180010756 APPLICANT REQUESTS: * reconsideration of the request submitted by her deceased husband, a former service member (FSM), for the upgrade of his under other than honorable conditions (UOTHC) discharge to honorable * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Seven Letters of Support * two DD Form 214s (Armed Forces of the United States (U.S.) Report of Transfer or Discharge) * FSM vital statistics supplementary medical certification 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 AR20120013091 on 21 February 2013. 2. The FSM’s widow states her husband served for 2 years, 7 months and 3 days under honorable conditions. He also served overseas for 1 year and 9 months in Vietnam. He is now deceased and she is curious if there are any benefits. 3. The FSM’s wife provides: a. Seven letters of support, his two daughters and son state that their father worked extremely hard to keep a roof over their heads, and food on their table. He was the hardest working man they ever knew. He taught them the value of an education so that they wouldn't have to do manual labor like him and their mother. While growing up their father instilled some lifelong lessons that have made them become better people. The FSM’s friends agreed that he was a hard worker and a family man and could rely on him in a time of need. b. FSM's DD Forms 214 for the periods ending 7 December 1969 and 13 December 1971. c. FSM's vital statistics supplementary medical certification, dated 1 August 2012, FSM was pronounced dead on 26 July 2012. 4. A review of the FSM's record shows: a. He enlisted in the Regular Army (RA) on 5 May 1967. He held military occupational specialty (MOS) 62B (Heavy Equipment Operator) and served in Vietnam from on or about 5 March 1968 to 7 December 1969. b. He accepted non-judicial punishment under the provisions of Article 15 on/for: * 26 February 1969, he disobeyed a lawful order on 25 February 1969, forfeiture of $20 per month for 1 month, 14 days restriction, and 14 days extra duty * 30 April 1969, absent without leave from 26-27 April 1969, reduction to private first class (PFC/E-3) and forfeiture of $38 per month for 1 month (reduction suspended for 30 days unless the suspension is vacated sooner, the reduction will be remitted without further action) c. On 7 December 1969, his DD Form 214 shows he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group to complete his remaining service obligation. His DD Form 214 for this period shows he completed 2 years, 7 months, and 3 days of active service. It also shows he was awarded or authorized: * National Defense Service Medal * Vietnam Service Medal * Vietnam Campaign Medal d. He enlisted again in the RA on 2 June 1971 for 3 years in the rank/grade of PFC/E-3. He was promoted to specialist four (SP4)/E-4) on 2 June 1971. On 16 June 1971, he was assigned to C Company, 613th Engineer Battalion, Fort Ord, CA as a 62B (Engineer Equipment Repairman). e. On 26 October 1971, C Company, 14th Engineer Battalion (ENG BN), Fort Ord, CA, published Unit Order Number 53 reducing him from SP4/E-4 to PFC/E-3 effective 26 October 1971 for misconduct. f. On 6 December 1971, C Company, 14th ENG BN, Fort Ord, CA, published Unit Order Number 67 reducing him from PFC/E-3 to private (PVT/E-1) effective 3 December 1971 by reason of having been approved for discharge from the service with an undesirable discharge. g. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his records contain a DD Form 214 that shows: (1) He was discharged from active duty on 13 December 1971 under the provisions of AR 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness with a character of service of UOTHC. He was assigned separation program number 28B (Unfitness - Frequent Involvement in Incidents of a Discreditable Nature with Civil/Military Authorities). (2) His DD Form 214 inadvertently shows he completed 2 years, 5 months and 22 days of active service this period. He actually completed 5 months and 22 days of active service this period. He had 20 days of lost time from 2-21 October 1971. g. 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. h. On 21 February 2013, the ABCMR determined that the evidence presented did not demonstrate the existence of probable error or injustice and the Board denied the FSM’s petition for an upgrade of his discharge. 5. By regulation applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 6. By regulation (AR 635-212), individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. An undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. 7. In reaching its determination, the Board can consider the applicant’s petition and his service record IAW 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 and letters of support 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. The Board agreed an Under Honorable Conditions (General) character of service is warranted, as the FSM did not meet the standards of acceptable conduct and performance of duty for Army personnel making him suitable for an Honorable characterization. The Board determined there were significant administrative errors on the FSM’s DD Form 214 for the period ending 13 December 1971. The DD Form 214’s statement of service, and his awards and decorations should be corrected to show an accurate picture of his service. In addition, the Board agreed to award the FSM the Army Good Conduct medal (1st Award) for the period covered by his first DD Form 214, as his DA Form 20 shows he received all excellent ratings for his conduct and proficiency. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X 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 awarding him the Army good Conduct medal (1st Award) for honorable service 5 December 1967 through 7 December 1969; and a. reissuing him a DD Form 214 for the period ending 13 December 1971 showing his character of service as under honorable conditions (General) b. amending item 22 (Statement of Service) by changing the entries to show: * Item 22(1) (Net Service This Period) – “00 06 02” * Item 22(3) (Total) – “04 07 00” * Item 22(3) (Total Active Service) – “03 01 05” c. adding the following awards to item 24: * Army Good Conduct Medal (1st Award) * National Defense Service Medal * Vietnam Service Medal with 7 bronze service stars * Vietnam Campaign Medal (1960) * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Expert Marksmanship Qualification Badge with Auto Rifle (M-16) * Marksman Marksmanship Qualification Badge with Rifle (M-14) 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 on the DD Form 214 for the period ending 13 December 1971 to Honorable. ___X______________ 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) 635-212, set forth the policy for administrative separation for unfitness. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. 3. 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. 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) AR20180010756 5 1