ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  24 June 2019

	DOCKET NUMBER:  AR20180011816


APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable conditions to under honorable conditions or honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* Army Commendation Medal Citation
* Letter of Appreciation
* Commonwealth of Massachusetts Statement of Service

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, that he comes from a family of veterans.  His dad served in World War II, one step-brother served in Korea, and two other stepbrothers and he served in Vietnam.  When he returned from war, and viewing how the public treated Vietnam veterans, he began to second guess if he did the right thing or not.  He started using marijuana to cope. 

3.  The applicant provides:

	a.  Army Commendation Medal Citation, dated 6 September 1971 to 20 March 1972, which commends the applicant for his service against communist aggression in the Republic of Vietnam.

	b.  Letter of Appreciation, dated 12 December 1972, which commends the applicant for his superior performance during an Army training test.

	c.  Commonwealth of Massachusetts Statement of Service, dated 23 January 1974, which identifies that the applicant served 3 years and 1 days of honorable service from 27 January 1971 to 28 January 1974.

4.  A review of the applicant’s service records shows the following:

	a.  He enlisted in to the Regular Army (RA) on 27 January 1971.

	b.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates that he was honorably discharged on 13 December 1972, to immediately reenlist.  He reenlisted on 14 December 1972 in the RA.

	c.  On 23 July 1973, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for wrongfully having in his possession and undetermined amount of marijuana.  His punishment in part, consisted on reduction to private first class/E-3.

	d.  On 7 September 1973, his immediate commander notified him that action was being initiated to furnish him a Certificate of Unsuitability for Enlistment/Reenlistment under the provisions of Army Regulation (AR) 601-280 (Personnel Procurement - Army Reenlistment Program), Chapter 1, Section VIII (Bar to Reenlistment Procedures) based on possession of marijuana.

	e.  The applicant acknowledged the commander’s intent to furnish him a Certificate of Unsuitability for Enlistment/Reenlistment under the provisions of AR 601-280, chapter 1, Section VIII, and elected not to make a statement.

	f.  The chain of command approved the Certificate of Unsuitability for Enlistment/Reenlistment under the provisions of AR 601-280, chapter 1, Section VIII on 11 September 1973.

	g.  On 16 November 1973, the applicant accepted NJP under the provisions of Article 15 for wrongfully having in his possession marijuana, and one specification of wrongfully using marijuana.  His punishment consisted on reduction to private/E-1.

	h.  The applicant’s record is void of any separation documentation.


	i.  On 5 April 1974, the applicant was discharged from active duty under the provisions of AR 635-200, Chapter 13 (Separation for Unfitness or Unsuitability), paragraph 13-5a(1) (Frequent incidents of a discreditable nature with civil or military authorities) with a general under other than honorable conditions characterization of service.  He completed 3 years, 2 months, and 8 days of active duty service.  He was awarded or authorized:

* Army Commendation Medal
* National Defense Service Medal
* Vietnam Service Medal with 3 Bronze Stars
* Vietnam Campaign Medal
* Overseas Service Ribbon
* Expert Marksmanship Badge with Rifle Bar

5.  By regulation, separations under the provisions of AR 635-200, chapter 13 provides policy and prescribes procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service 

6.  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 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 warranted.  Based upon the nature of the misconduct and it following a overseas deployment in Vietnam, the Board concluded that granting an upgrade in the characterization of service to Honorable was appropriate.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Honorable.
	 
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) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 13 provides policy and prescribes procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service 

	b.  An honorable discharge is a separation with honor and 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.  Where a member has served faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks, he may be furnished an honorable discharge.
 
	c.  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.  AR 601-280 (Personnel Procurement - Army Reenlistment Program), serves to assist commanders and reenlistment personnel in conducting the Army reenlistment Program.  It lists eligibility criteria and options currently available and covers uniform procedures for immediate reenlistment of persons serving in the Active Army.

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.

ABCMR Record of Proceedings (cont)	 AR20180011816


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