ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
Record of Proceedings


BOARD DATE: 20 August 2019 DOCKET NUMBER: AR20190001962

APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

   * DD Form 149 (Application for Correction of Military Record)
   * Applicant Statement 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 AR20070009146 on 7 January 2008.

3. The applicant states he wants the board to find it in your heart and soul to forgive a young man for the mistakes he’s made. He apologizes to the Army and his country and wants it to forgiven and forgotten.  He wants his DD Form 214 change to general.  He did give his time in in Vietnam for the good of his country and implore the board to consider his request.

4. On 20 December 1965, he entered the Regular Army for three years at the age of
20. He completed basic combat training (BCT) as well as advanced individual training (AIT) earning military occupational skill (MOS) 64A, Light Vehicle Driver with conduct and efficiency ratings as excellent. On 8 April 1966 he was assigned to his first duty assignment with the 529th Transportation Company, Fort Eustis, Virginia.

5. On 3 February 1967, he underwent a special courts-martial (SPCM) and was found guilty for being absent without authority (AWOL) on or about:

* 22 June 1966 to on or about 30 July 1966

* 8 September 1966 to on or about 4 January 1967

6. On 24 February 1967 the sentence was adjudged and he was sentence to four months of hard labor, forfeiture of $30.00 per month for four months however, effective 5 April 1967, the sentence was suspended for three months, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence will be remitted without further action.

7. His enlisted qualification record shows:

   a. On 27 April 1967 he was assigned as a Driver to Headquarters, Headquarters Company, 53rd Signal Battalion, Republic of Vietnam.

   b. On 5 October 1967 he was reassigned to 9th Transportation Company, Republic of Vietnam where he served as a Light Truck Driver and Wrecker Operator.

   c. On 14 April 1968 he was in a casual duty status enroute back to the Continental United States (CONUS), did not report to his next unit of assignment and on 16 July 1968 he was Dropped from Rolls/AWOL.

d. His conduct and efficiency ratings were excellent while assigned in Vietnam.

8. On 17 July 1969, he underwent his second SPCM finding him guilty for being AWOL from on or about 11 June 1968 to on or about 24 June 1969.  The next day the sentence was adjudged; he was sentence to six months confinement, forfeiture of
$82.00 per month for six months, and reduced to the grade of Private (E1).

9. On 1 August 1969, the applicant underwent a medical examination finding him qualified for separation. A few days later on 6 August 1969, he was evaluated by a psychiatrist diagnosing him with no psychiatric disease and recommending him for separation.

10. On 11 September 1969, the applicant was advised by his commander of his intention to recommend him for separation under the provisions of Army Regulation (AR) 635-212 for unfitness and advised him of his rights. The applicant was advised by legal counsel and acknowledged that he understood his available rights and indicated he would not submit a statement on his own behalf.

11. On 16 September 1969, the applicant’s commander recommended he be separated from the service under the provisions of paragraph 6a(1) of AR 635-212 for unfitness; elimination for unsuitability was not considered appropriate. The applicant was dropped from the rolls as a deserter three times, resulting from three periods of AWOL; three periods of confinement, and one period of civil conviction. The commander requested a waiver for further rehabilitation and recommended he be given an undesirable discharge because of his frequent incidents of a discreditable nature

with military authorities. The applicant’s intermediate commander recommended approval and the appropriate authority approved the separation for unfitness with an undesirable discharge.

12. On 9 October 1969, the applicant was discharged accordingly. His DD Form 214 shows he completed 1 year, 8 months, and 11 days of service with approximately 480 days lost between AWOL and confinement.

13. The applicant states, he apologizes to the Army and his country and wants it to forgiven and forgotten. He did give his time in in Vietnam for the good of his country and implore the board to consider his request. His record shows he enlisted at the age of 20 with 2 years of high school; he completed training with conduct and efficiency as excellence. His record was void of indiscipline prior to him going AWOL. He court- martial two times, one time prior to reporting to Vietnam and the second time upon return from Vietnam, where he did not report to follow-on assignment and dropped from rolls.	He received excellent conduct and efficiency rating while assigned to Vietnam from 27 April 1967 to 14 April 1968.  He was awarded the Vietnam Service Medal (VSM), the Republic of Vietnam Campaign Medal with 60 device, and two overseas bars.  The highest rank he held was Specialist (SPC).

14. The applicant applied to the Army Board for Correction of Military Records (ABCMR) and was denied on 7 January 2008. The board stated, based on his infractions of discipline shown in his record, his service did not meet the standards of acceptable conduct and performance of duty of Army personnel.

15. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance.

BOARD DISCUSSION:

1. The Board 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 statement, his record of service to include service in Vietnam, the frequency and nature of his misconduct, the outcome of two Courts-martial, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigation for the misconduct. The Board considered he applicant’s stated remorse, but he did not provide evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board 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 found 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.




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): N/A




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.