ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings BOARD DATE: 9 July 2019 DOCKET NUMBER: AR20190000732 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certification Release of Discharge) * Personal Letter FACTS: 1. (Optional as applicable.) 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 requests an upgrade of his discharge because he was young and dumb and was having problems at home. He also contends that he was infected by Agent Orange. Of note, there are not medical records or medical diagnosis in the packet that the applicant provided to support this contention. 3. On 23 January 1969, the applicant was inducted into the Regular Army on a 3 year contract at the age of 17. He was awarded the MOS 11B (Infantryman). 4. On 22 May 1969 the applicant appeared before and was found guilty by a special court-martial for being absent without leave (AWOL) from 1 April through 9 May 1969. He was sentenced to hard labor for one month and to forfeit $65.00 pay per month for one month. His sentence of confinement was suspended for one month and he served 13 days confinement. 5. On 1 August 1970, the applicant received an Article 15 for failure to go to a prescribed place of duty. He was reduced to Private E1 and forfeiture of $66.00 per month for two months. 6. On 19 February 1971, the applicant appeared before and was found guilty by a special court-martial for 3 counts of Disobeying a Direct Order, and 1 count of Disrespect to a Superior. He was reduced to Private E1, forfeiture of $50.00 for one month, 15 days hard labor without confinement, and 15 days restriction to Fort Hood. 7. The applicant’s records are absent of a separation packet or other documents that provides specific details; however, his DD214 shows he was discharged on 15 April 1971 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10. His DD214 shows that he completed 1 year, 10 months, and 9 days of net active service, of which 11 months and 5 days were Foreign Service. He is authorized the Vietnam Service Medal w/1 Bronze Service Star; Combat Infantryman Badge; Civil Actions Medal 1st Class; Marksman M-16 rifle, and Sharpshooter M-14 rifle. The applicant has non pay periods and time lost for: * 1 – 15 April 1969 * 16 April – 8 May 1969 * 17 – 30 July 1969 * 15 August – 5 October 1969 * 6 – 10 February 1971 * 1 – 11 March 1971 8. The applicant provided a personal statement that spoke of contentions he sent the Veterans administration about requesting a hearing for his separation discharge. 9. The applicant contends that he received a Purple Heart while deployed to Vietnam. The applicant's record is void of orders or other documentation that indicates he was recommended for or awarded the Purple Heart. A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any Purple Heart orders in the applicant's name. 10. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in- lieu of trial by court martial. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 11. The applicant’s records shows that he was inducted into the Army at the age of 17 and was subsequently discharge under chapter 10 of AR 635-200 after serving 1 year 10 month and 9 days of a 3 year contract. Of note 11 months and 5 days were Foreign Service. 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: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s service record to include service in Vietnam, his awards and Badges, the frequency and nature of his misconduct and whether to apply clemency. The Board found no mitigating factors in the record and the applicant provided no in-service evidence and not post-service references or accomplishments in support of a clemency determination. The Board found insufficient evidence to overcome the misconduct and determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board determined that relief was not warranted. 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. X 7/18/2019 CHAIRPERSON 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. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, stated when the general court-martial authority determined that a Soldier was to be discharged from the service under other than honorable conditions he was reduced to the lowest enlisted grade. Board action was not required for this reduction. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. 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. d. An UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 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 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.