ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF:  

BOARD DATE:  13 April 2020

DOCKET NUMBER:  AR20180015252


APPLICANT REQUESTS:  The applicant requests an upgrade of his under other than 
honorable conditions discharge to fully honorable or honorable for veteran’s benefits.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Statement submitted in support of Department of Veterans Affairs (VA) Claim
*	DD Form 214 (Armed Forces of the United States Report of Transfer or 
Discharge)

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 he was homeless from age 13.  However, he made it through 
high school.  He felt like he was being saved when he got drafted by the U.S. Army.  He 
completed basic training at Fort Lewis, WA and advanced individual training at Fort Ord, 
CA, before going to Vietnam.  In Vietnam, he was attached to the 577th Engineers and 
was assigned to a reaction force which defended the compound.  Now he is homeless 
again, with four children and is unable to access VA benefits.

     a.  It was in Vietnam that he first experienced the drug scene.  He was introduced to 
“POT,” [marijuana] which did not go well.  He began to get into trouble. 

     b.  He is aware that he was discharged due to substance abuse.  But before he went 
to Vietnam, he had never left the country, he was age 18, and had not been exposed to 
the conditions in which he served in Vietnam.  He had never smoked nor drank before 
joining the military and he went from that to an addict.  He was proud to serve and he 
has been clean and sober for the past 10 years.  



3.  The applicant provides a document that he submitted in support of his VA Claim, in 
which he states: 

     a.  He was introduced to heroin, China White (98% pure), but he didn't think much of 
it because he had never used any type of drugs prior to joining the military.  

     b.  Everything was good until he got a thirty day drop and arrived at Cam Rahn Bay 
for out-processing.  He began to feel the effects of heroin addiction and he and about 
fifty others were put in detox.  They were placed in a Quonset hut with a blanket and 
their gear.  People came in and stole from them, if they resisted they were beat-up, and 
kicked, and in the state they were in only God knows what else.  He still has night 
terrors and cold sweats.  They were told if they made it through they could go home.

     c.  On the flight home, he ate approximately 2 bottles of aspirin.  When they arrived 
in San Francisco, they were rushed through processing and turned loose on the streets 
of the City, only to be spat on and showered with beer.  

     d.  When he arrived at his sister's place his car was gone and his fiancé had dumped 
him and sold his Harley.  So he went to town and stayed drunk for a week.

     e.  On his way back to Fort Ord he was picked up and taken to the Stockade.  He 
had his military identification and orders.  

     f.  He went to school and continued with his life without filling out paperwork for 
Agent Orange exposure.  He later received a letter from the military telling him that his 
claim had been processed in Washington, DC, around 1976. 

     g.  He believes, had he received more support as a veteran when he came home in 
his condition that his journey in life and his children’s may have been different. 

4.  The applicant's military records show:

     a.  On 21 August 1969, at the age of 19, the applicant was inducted into the Army of 
the United States.  He completed the training requirements and he was awarded military 
occupational specialty 64A (Truck Driver).  He was assigned to Vietnam on
18 January 1970. 

     b.  On 1 June 1970, while in Vietnam he accepted nonjudicial punishment (NJP) 
under Article 15, Uniform Code of Military Justice (UCMJ) for sleeping on his guard 
post.  His punishment consisted of reduction from specialist four to pay grade E-3 
(suspended), a forfeiture of pay, extra duty, and restriction.

     c.  In January 1971, he returned to the Continental United States.  His Enlisted 
Qualification Record shows he was carried in an absent without leave (AWOL) status 
from 13 January to 12 October 1971.  

     d.  On 14 October 1971, the applicant's commander preferred court-martial charges 
against him for the above period of AWOL.  

     e.  On 14 October 1971, after consulting with counsel, the applicant requested 
discharge in-lieu of trial by court-martial under chapter 10, AR 635-200.  In his request, 
he acknowledged that he had been advised of the implications of his request; he 
understood the charges preferred against him; that he may be issued an under other 
than honorable conditions discharge and furnished an Undesirable Discharge 
Certificate.  He was making this request of his own free will and no one had subjected 
him to coercion; he may be deprived of many or all Army benefits administered by the 
VA, and he may be deprived of his benefits as a veteran under both State and 
Federal Law.  He also acknowledged he understood that he may encounter substantial 
prejudice in civilian life, if issued an undesirable discharge.  He submitted a statement in 
support of his request indicating.

          (1)  He was drafted in 1969.  He had 16 months of good time and 9 months of 
bad time.  He received one NJP for sleeping on guard duty, while overseas.  He was 
pending charges for being AWOL 9 months from Fort Hood.  

          (2)  When he returned from Vietnam, he was a little strung out and wanted no part 
of the Army.  If allowed to stay in [the military], he would do wrong, because when under 
pressure, he tended to return to drugs to find relief.  He felt an urge to go AWOL again.

5.  Both the applicant's immediate and intermediate commanders recommended 
approval of the applicant's request for discharge.  

6.  The separation authority approved the applicant's request and directed the issuance 
of an Undesirable Discharge Certificate; in addition, the separation authority ordered the 
applicant's reduction to private/E-1. 

7.  On 30 November 1971, the applicant was discharged under other than honorable 
conditions.  His DD Form 214 shows he completed 1 year, 5 months, and 4 days of his 
2-year contract, with 273 days of lost time, due to being AWOL and in confinement.  He 
was awarded or authorized the National Defense Service Medal, Vietnam Service 
Medal, and Over Seas Service Bar.

8.  Chapter 10, AR 635-200 provided, in effect, that Soldiers charged with UCMJ 
violations, for which a punitive discharge was a punishment, could voluntarily request 
separation in-lieu of trial by court-martial.  According to the Manual for Courts-Martial, a 
violations of Article 86, UCMJ carried punitive discharges as a punishment for more 
than 30 days and AWOL.  

9.  The applicant contends: 

     a.  He was discharged due to substance abuse; however, his records shows, he was 
charged with being AWOL from 13 January to 12 October 1971, and he voluntarily 
requested discharge to avoid a possible felony conviction and jail time.

     b.  He is homeless with four children and is unable to access VA benefits.  As a part 
of his request for discharge, he acknowledged that he understood he may be deprived 
of all Army benefits administered by the VA, as well as veteran’s benefits under both 
State and Federal Laws.  Additionally, the granting of veterans' benefits is not within the 
purview of the ABCMR.  Questions regarding eligibility for VA benefits should be 
addressed to the VA.

     c.  He was young, had never left the country, and had never drank nor smoked until 
he went to Vietnam and was exposed to the conditions of war.  It was in Vietnam that he 
became addicted.  He turned to drugs when things got stressful.  His addiction was 
discovered while in the process of leaving Vietnam.  He was treated in horrible 
conditions and allowed to leave Vietnam.  He was age 19, at the time of induction.  The 
available evidence does not contain any evidence of his drug addiction or treatment; 
however, many individuals who served in the Vietnam War experienced horrific 
conditions, drugs were commonly available, and young people who would not have 
used drugs under normal circumstances, became caught up in circumstances they were 
unable to leave behind when the war was over.

     d.  He believes, if he would have received better support as a veteran when he 
returned from Vietnam, his life and his families may have been different.  He was proud 
to serve and he has been clean and sober for 10 years.  

     e.  He also referenced Agent Orange, however, this Board has no means for 
verifying what geographical locations in which he served.  Therefore, all issues related 
to this subject would be more appropriately addressed by contacting the VA.

10.  In reaching its determination, the Board should consider the applicant’s 
contentions, the circumstances under which he served, and his military service record, 
in accordance with the published equity, injustice, or clemency determination guidance.  





BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records, regulatory requirements, and published DoD guidance for 
consideration of discharge upgrade requests.  The Board considered the applicant’s 
statement, his record of service, the frequency and nature of his misconduct and the 
reason for his separation.  The Board noted the facts presented above.

2.  The Board noted that he had legal counsel, that he acknowledged by his initials that 
his rights were explained to him by legal counsel and that he understood them, that he 
voluntarily requested discharge under the provision of Chapter 10, in lieu of trial by 
court-martial, that he declined to submit a statement in his defense, that he 
acknowledged his understanding that by requesting discharge, that he was admitting 
guilt to the charge against him, or of a lesser included offense that also authorized the 
imposition of a bad conduct or dishonorable discharge, and that he could receive a 
discharge under other than honorable conditions.  

3.  The Board found insufficient evidence of in-service mitigation to overcome the 
misconduct and there was insufficient post-service evidence to justify a clemency 
determination.  Based on a preponderance of evidence, the Board determined that 
there was no error or injustice in the applicant’s discharge or character of service, or 
basis for clemency.

4.  The ABCMR does not grant requests for the correction of records solely for making 
the applicant eligible for veterans or other benefits.  The Board decides every case 
individually based upon its merits when an applicant requests a correction to his military 
records.

5.  After reviewing the application and all supporting documents, the Board found that 
relief is not warranted.



BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:XXX	:XXX	:XX	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. 

     a.  A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to 
members who had committed an offense or offenses for which the authorized 
punishment included a bad conduct or dishonorable discharge could submit a request 
for discharge for the good of the service.  The request could be submitted at any time 
after the charges had been preferred.  Although an honorable or general discharge was 
authorized, an under other than honorable conditions discharge was normally 
considered appropriate.

     b.  An honorable discharge is a separation with honor.  The honorable 
characterization is appropriate when the quality of the Soldier’s service has generally 
met standards of acceptable conduct and performance of duty for Army personnel.  

     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.

2.  The Manual for Courts-Martial, Table of Maximum Punishments includes a punitive 
discharge as punishment for Article 86, for being AWOL for more than 30 days, a 
forfeiture of all pay and allowances, and confinement for 1 year.  

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.

     a.  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 on the basis of 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.

     b.  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)	 AR20180015252


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