IN THE CASE OF: BOARD DATE: 3 June 2019 DOCKET NUMBER: AR20180016854 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Review of Discharge Application) * DD Form 214 (Certification Release of 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. 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 AR2002081397on 24 July 2003. 3. The applicant states that he was young when he joined the military and went straight to Vietnam. Once there he had multiple problems and there was no one to help him, other than people wanting to write him up during his 14 month tour. 4. On 14 January 1969 the applicant was inducted into the Army of the United States (AUS) for 2 years at the age of 20. He completed both Basic and Advanced Individual Training and he was awarded the MOS 91A (Medical Corpsman). He was ultimately assigned to the 566th Medical Company in Vietnam. His highest pay grade achieved was private first class (PFC/E-3) on 8 September 1969. 5. On 18 March 1970, the applicant was convicted by a special court-martial of offering violence against a lieutenant, by communicating a threat, and by wrongfully appropriating an ambulance. He was sentenced to forfeit $70.00 pay per month for 6 months and to be reduced to Private E-1. 6. On 22 May 1970, the applicant received an Article 15 for failure to report to his appointed place of duty. 7. The applicants records are absent of a complete separation packet; however the applicant submitted a previous case to ABMCR. The packet indicates: a. On 4 August 1970, a bar to reenlistment was initiated against the applicant, citing the above offenses. b. The bar was approved on 12 August 1970. c. The applicant’s records did not contain the facts and circumstances surrounding his immediate separation from Vietnam; however, on 26 September 1970 the applicant was issued separation orders indicating his reason for discharge was unfitness with a characterization of service of UOTHC. 8. He was discharged accordingly and his service was characterized as UOTHC. His DD 214 shows he completed 1 year, 8 months, and 13 days of total active service of which 1 year, 2 months, and 10 days were Foreign Service. His awards and decorations National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and Overseas Service ribbon with 2 bars. 9. On 24 July 2003, the applicant submitted an application to ABMCR requesting his discharge be upgraded and was denied. The board stated there is no evidence available to indicate that the applicant engaged in drug abuse or that his misconduct was directly related to drug abuse. As a result, there is no basis for granting the applicant’s request. 10. The applicant records contains a properly constituted DD Form 214 that was authenticated by the applicant at the time of separation. It shows that the applicant was separated with a UOTHC discharge under the provisions of 635-212, for unfitness. He completed 1 year 8 months and 13 days of his 2 year contract, of which 1 year, 2 months, and 10 days were Foreign Service. 11. The regulation in effect during this time period, AR 635-212, Discharge for Unfitness and Unsuitability states an individual separated by reasons of unfitness will be furnished an undesirable discharge certificate except that an honorable or general discharge certificate may be awarded if the individual being discharged has been awarded a personal decoration or if warranted by the particular circumstances in a given case. 12. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, in addition to the administrative notes below the signature block, the Board determined that there is sufficient evidence to grant relief and amend the Army Board for Correction of Military Records (ABCMR) decision in Docket Number AR2002081397on 24 July 2003. 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 found the statement, the applicant’s wartime service and evidence of PTSD to be compelling. The Board agreed that the applicant’s case warrants clemency in that the applicant’s PTSD is a mitigating factor in the misconduct that resulted in the applicant’s discharge characterization. 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: In addition to the administrative notes below the signature block, 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 for the period ending “26 SEP 70” showing his Characterization of Service as “General Under Honorable Conditions”, the narrative reason as “Secretarial Authority”, the Authority as “AR 635- 200, para 5-3”, a separation code of “JFF”, and a Reentry Code of 1. 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. A review of the applicant's records shows he is authorized awards and or badges not listed on his DD Form 214. * Republic of Vietnam Gallantry Cross with Palm Unit Citation, DAGO 8 (1974) * Vietnam Service Medal with 4 bronze service stars 2. As a result, amend the DD Form 214 by deleting the Vietnam Service Medal and adding: * Republic of Vietnam Gallantry Cross with Palm Unit Citation, DAGO 8 (1974) * Vietnam Service Medal with 4 bronze service stars 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. AR 635-212, as then in effect, set forth the policy for administrative separation for Soldiers due to unfitness. It provided that Soldiers 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, 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 otherwise. 3. AR 635-200 (Active Duty Enlisted Administrative Separations) provides for the separation of enlisted personnel, it provides: a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. 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. 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. 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 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. 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) AR20180016854 4 ABCMR Record of Proceedings (cont) AR20180016854 1