IN THE CASE OF: BOARD DATE: 22 April 2019 DOCKET NUMBER: AR20180016202 APPLICANT REQUESTS: * upgrade his under other than honorable conditions discharge to general under honorable conditions * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Special Orders Number 255, dated 13 October 1971 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) 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 had a family crisis. He was drafted for the Vietnam War and served our country to the best of his ability. 3. The applicant's service records show: a. He enlisted into the Regular Army at 19 years of age for a 3-year term; he held military occupational specialty 76A (Supply Clerk). Following initial training, orders assigned him to Fort Hood, TX; he arrived on 11 November 1970. Effective 18 February 1971, his Fort Hood chain of command promoted him to private first class (PFC)/E-3. b. On 18 April 1971, the applicant's Fort Hood unit changed his duty status from ordinary leave to absent without leave (AWOL); his unit dropped him from Army rolls on 5 May 1971. He surrendered himself and returned to military control at Fort Hood on 19 September 1971. c. On 21 September 1971, the applicant's Fort Hood commander preferred court- martial charges against him for AWOL from 18 April until 19 September 1971 (154 days). That same date, after consulting with counsel, the applicant requested discharge for the good of the service, in-lieu of trial by court-martial, under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he affirmed no one subjected him to coercion and counsel had advised him of the implications of his request. He elected not to submit a statement in his own behalf. d. On 1 October 1971, the separation authority approved the applicant's request and directed his undesirable discharge under other than honorable conditions; he also ordered the applicant's reduction to private (PV1)/E-1. On 14 October 1971, the applicant was discharged accordingly; his DD Form 214 showed he completed 11 months and 3 days of his 3-year enlistment. He was awarded or authorized the two marksmanship qualification badges. e. The applicant's service record includes his DA Form 20 (Enlisted Qualification Record), which shows, between 22 June and 10 October 1970, the applicant earned "Excellent" conduct and efficiency ratings; the ratings were blank until 20 September 1971, when "Unsatisfactory" was listed. f. On 28 November 1977, he petitioned the Army Discharge Review Board (ADRB), requesting an upgrade of his discharge to general under honorable conditions. He stated the reason he requested an upgrade was because he could not get or hold a good job. He was unable to better himself when people looked at the kind of discharge he received; it was also hard to get credit. On 2 April 1979, the ADRB denied his request, finding his discharge had been proper and equitable. The ADRB further noted the applicant had not submitted any evidence that would mitigate his AWOL period. g. On 2 April 2013, the applicant reapplied to the ADRB requesting a personal appearance and stating he had gotten sick on leave and, in effect, contracted Hepatitis C. He indicated he still suffered from Hepatitis C, as well as diabetes; additionally, he had bad legs and feet. His son was born 8 months after leave. On 30 April 2013, the Army Review Boards Agency (ARBA) advised the applicant via letter his request was administratively closed because it was submitted beyond the authorized period for the ADRB (i.e. more than 15 years after discharge). h. On 9 May 2013, the applicant submitted an application to the ABCMR; he stated there was a paper in his file that said he was not sent to Vietnam. In effect, the reason he entered the Army was to fight in Vietnam, not to "play Soldier"; he was a leader and his records would prove that. While he was on leave, his girlfriend became pregnant. He offered further details in a self-authored statement (when this statement was originally scanned, portions of the statement were cut off): (1) He did not serve his beloved country to "play Soldier." He loved war and wanted to kill Vietnamese, but they said he was better at typing and leadership. In effect, leadership is fine in war, but in Texas, $180 per month only covered one week's worth of food; this was not good; war/Vietnam overseas pay would have been better. He did not enter the Army to play games; after 1 year of service, he took leave and he got his girlfriend pregnant. (2) He went back to fight, but they still did not need him; "well, sorry, but (he) love(d) war"; he became a leader in the world's largest gang: the 18th Street Gang. (3) In effect, he was known as "Big Casper," the (cut off) of 18th Street 'til he... (cut off) ... he would have been a hero, but the Army was not ready for him; they took that away from him. The applicant referenced a YouTube video. i. On 5 July 2013, ARBA administratively closed the applicant's application stating, while he had expressed concerns, he had not identified a specific error in his military records that required correction. 4. In regards to the applicant's request for a personal appearance, Army Regulation 15- 185, states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 5. The UCMJ violation of AWOL for more than 30 days included a dishonorable discharge as a punishment. Discharges under chapter 10, AR 635-200 were voluntary, and were available in lieu of trial by court-martial once charges had been preferred. The applicant asserts he had a family crisis. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the applicant had limited creditable service, no wartime service and no mitigating circumstances for the misconduct. The Board agreed that the applicant’s discharge characterization is appropriate for the misconduct. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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: Aside from the administrative note below the signature, 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. ADMINISTRATIVE NOTE(S): 1. AR 672-5-1 (Awards), in effect at the time, prescribed policies and procedures for military awards and decorations. The National Defense Service Medal was awarded for honorable active service for any period after 31 December 1960 and until a terminal date to be announced (later versions of the regulation stated this award addressed service during the Vietnam War and covered the period from 1 January 1961 to 14 August 1974). 2. AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized. 3. As a result, amend his DD Form 214, ending 14 October 1971, by adding the National Defense Service Medal. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-9e (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. b. Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Once approved, an undesirable discharge was normally furnished, but the discharge authority could direct either an honorable or general discharge, if warranted. 3. The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed Article 86 (AWOL for more than 30 days), UCMJ, included a dishonorable discharge. 4. AR 600-200 (Enlisted Personnel Management System), in effect at the time, stated in paragraph 7-30b(3) (Reasons for Reduction – Approved for Discharge from Service with an Undesirable Discharge), Soldiers being separated with an undesirable discharge were to be reduced to the lowest enlisted grade. 5. 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 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. 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. 6. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180016202 5 ABCMR Record of Proceedings (cont) AR20180016202 1