IN THE CASE OF: BOARD DATE: 11 April 2019 DOCKET NUMBER: AR20190000053 APPLICANT REQUESTS: In effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his service is characterized as honorable in lieu of under conditions other than honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statement written in his own behalf * Character reference statements (x4) 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 absent without leave (AWOL) during a certain period of time when he was assigned to and he got into trouble because he was not wearing a certain badge. He states he has written a letter explaining everything and why he went AWOL. He also states he has provided letters from friends and family explaining how he has changed since he left the military and how the upgrade of his discharge would change his life for the better. 3. On 25 March 1971, the applicant enlisted in the Regular Army and he held military occupational specialty 64C (Motor Transport Operator). He served in the Republic of Vietnam with the 359th Transportation Company from 17 August 1971 to 12 April 1972. He returned to the continental United States and he was assigned to Company B, 4th Support Battalion, in May 1972. 4. The applicant left his unit in an AWOL status from on or about 30 May 1972 until he voluntarily surrendered to military authorities at the Personnel Control Facility, Fort Carson on 8 May 1973. On 14 May 1973, court-martial charges were preferred against the applicant for this period of AWOL. 5. On 15 May 1973, the applicant was found medically qualified for separation. 6. On 15 May 1973, the applicant was interviewed by the Commander, U.S. Army Personnel Control Facility, Fort Carson, the commander stated during the interview, the applicant assured him that he desired to be discharged from the Army. The commander believed, based on the applicant’s present attitude and record he would never complete his service and that any attempt at rehabilitation would be ineffective. “There was no evidence of mental deficiency or underlying emotional disturbance.” This commander recommended the applicant be discharged for the good of the service, if appropriate with an Undesirable Discharge Certificate. 7. On 17 May 1973, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel). He acknowledged he had been afforded the opportunity to speak with counsel prior to making his request. He indicated he was submitting a statement in his own behalf. 8. The available record does not contain a written statement that the applicant provided at the time of separation, however, it does contain a questionnaire that the applicant completed at the time of discharge containing the following questions/answers: * He stated yes, I have been advised of my rights * I do make the following statements of my own free will * Your attitude toward the Army? He replied, I feel the Army is fair in some way, but [not] in others * Your personal assessment of your rehabilitation potential? He replied, he did not believe he could be rehabilitate for military life * Your attitude towards the type of discharge you will receive, if your application is approved? He acknowledged, I know the type of discharge I am getting, and I will accept the responsibility of it 9. The applicant's commander and intermediate commander recommended the applicant's request for discharge be approved and that he be issued an Undesirable Discharge Certificate. 10. On 25 May, 1973, the court-martial authority approved the applicant's voluntary request for discharge, directed that he be reduced to pay grade of E-1, and the issuance of an Undesirable Discharge Certificate. On 13 June 1973, he discharged in pay grade E-1. 11. On 13 June 1973, the applicant was discharged under the provisions of chapter 10, AR 635-200 for the good of the service with an undesirable discharge, in pay grade E-1. He completed 1 year, 3 months, and 10 days of net active service that was characterized as under conditions other than honorable. He had 343 days of lost time. His awards are listed as: The National Defense Service Medal, Vietnam Campaign Medal with 1960 Device, Vietnam Service Medal with 1 bronze service star, Expert Marksmanship Qualification Badge Rifle (M-16), and 1 Overseas Service Bar. 12. Chapter 10 of AR 635-200, in effect at the time, stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. 13. The applicant indicates in a statement written in his own behalf, that he completed his military training, went on leave for 2 weeks, and he was shipped off to Vietnam. Initially, he was sent to Qui Nohn where he guarded the ammunition dump and the pier. Then he was sent into “Sonar,” where he was responsible for destructing things that were located by sonar. After that he was sent to drive a light jeep. Their convoys received fire and returned fire and there were casualties. His mind played “hell” on him. They got little to no sleep and they drank a lot alcohol and used drugs to ease the pain. Later he was sent to Pleiku Vietnam to haul jet fuel, and he pulled guard duty as well. He drank more and took whatever was being handed out on a daily basis, things were bad for all of them. Additionally, he states: a. On 22 September 1972, he went home on leave for 30 days, after his leave was up, he reported to for duty. Upon his arrival a young military police (MP) gave him a hard time. He told the MP, he was heading back to Vietnam and he was given an Article 15 for not having a stateside duty badge. The MP was rude, he treated him like other people had been treating him on the outside. They called him baby killer, used profanity toward him, and spit on him. It was bad. He tried to talk to the MP, but he was young and cocky. He finally said, “I am done.” He left the base and continued to drink among other things. Finally, he got a job and he thought about the military daily. He wanted to return to the military, but his mind was not ready. b. In 1973, he decided to return to Fort Carson for duty. When he reported for duty he met with aggression and the same treatment that he experienced on the outside. He was assigned to the transit barracks and had to report to the colonel every morning. He was told he would not be place in a dishonorable status, if he resigned from the Army. He was told he would receive an honorable discharge, because he had served in Vietnam. He never got over what he saw in Vietnam. He continued to drink and self- medicate. He will live with his decisions from now on. He lost good friends and himself. 14. He also provides four character reference statements in support of his request: a. Ms. states, in effect, she has known the applicant for 10 years. He has always been very respectful, he tries very hard not to let his troubles/feelings show and it takes a lot of coaxing to get him to express what is troubling him. He puts others first and he has a big heart. He is a very caring person. b. Mr. [a Navy veteran] states he has known the applicant about 30 years. He is a good man and friend. His going AWOL was wrong, but at the time he felt he had no choice. He does not need to go into detail about his Vietnam service, because the [military] has his files. The applicant wishes he could do things over. He requests that the applicant’s discharge be upgraded so the applicant as a Vietnam veteran can get his benefits. c. Ms. states she has known the applicant about 30 years and he is a good man always willing to help his neighbors. The applicant lives in the mountain alone. He regrets his choices as a young man. He has good morals and values. She values his friendship and could not ask for a better neighbor. d. Mr. states he has known the applicant in a variety of capacities for more than 7 years. The applicant has been an integral member of the rural community of. He acts as a caretaker for many families that reside on the mountain part time. He is counted on to assist with home repairs, road repairs, and general maintenance. He never fails to help a neighbor. He has an excellent rapport with people of all ages. He has acted as area guide on the mountain for both young children and the elderly. His excellent communication skills allows him to connect with all kind of people and inspire them to put forth their best effort. He recommends the applicant’s discharge be upgraded so that he can continue his community work with the dignity that comes with such an upgrade. Mr. states he has served in various military components in peace time and during conflict and she trusts the applicant implicitly. 15. The applicant contends that he got into trouble with military authorities because he was AWOL and he was not wearing a certain badge. He also contends that his Vietnam experiences affected his ability to continue to serve. 16. His service record shows he was AWOL from 30 May 1972 to 8 May 1973, as such, charges were preferred against him and he voluntarily requested discharge to avoid a trial by court-martial. The available evidence does not refer to him not having a specific badge. His service record contains no misconduct prior to the AWOL offense. 17. In reaching its determination, the Board can consider the applicant’s petition, his character references, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. 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. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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: 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): Not Applicable 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 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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 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) AR20190000006 7 ABCMR Record of Proceedings (cont) AR20190000053 1