BOARD DATE: 25 June 2019 DOCKET NUMBER: AR20190002216 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to general. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant Statement * Two character letters 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 in effect he was discharged for going AWOL once and received an under other than honorable conditions, when someone else who joined the Army with him went AWOL on four separate occasions and received a general discharge. He believes it was unfair. a. A good friend of the applicant asked if had been screened for agent orange and he replied no but when he went to the VA in 2018, he was refused because of his discharge. He found out that two of his friends who went AWOL both received general discharge certificates. He believes this was very unjust. b. He went AWOL once and had never been in any other trouble. He was willing to pay the penalty and finish his time but was given an OTH discharge. In 2018, he found out it was deemed dishonorable for VA purposes. c. When he came back from Vietnam, he was still a good person even though he knew a there was something wrong but didn’t know what it was and to be treated the way he was took a toll on his mind. Nobody would listen to his concerns; all he wanted was transfer to the east coast so he could be closer to home. d. He was drafted by the Army, in December 1970 for two years. Vietnam was not a very good place to be but they did what they had to do for this country and would do it again. When he came back there was no time to adjust. He was looking forward to being permanent party with a job to do. e. He doesn’t have a criminal record. He’s been married for 35 years, has five grown children and has worked hard all of his life. His grandfather, father, and uncle all served in either, World War I and II. Hopefully, could be buried there. 3. On 29 January 1971, the applicant enlisted in the Regular Army for three years at the age of 19. 4. On 24 July 1972, he was charged for being absent without leave (AWOL) on or about 25 April 1972 to on or about 19 July 1972. 5. On 26 July 1972, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10. He signed a request for discharge for the Good of the Service and indicated he would submit a statement in his own behalf. 6. On 7 August 1972, the defense counsel wrote a letter on the applicant’s behalf, recommending approval and urging he be considered for a general discharge because the applicant volunteered for duty and served in Vietnam. For his service he received a Bronze Star Medal (BSM) and Army Commendation Medal (ARCOM) as well as the usual Vietnamese service ribbons. 7. On 11 August 1972, the applicant’s intermediate commander recommended approval of his discharge however, recommended disapproval of the defense counsels request for a general discharge. He stated the applicant completed only 15 months of his three year obligation and a review of the applicant’s record failed to confirm award of the BSM or ARCOM. 8. On 24 August 1972, the appropriate approval authority approved the request for separation directing the applicant be furnished an undesirable discharge certificate. The applicant was discharge accordingly; he completed 1 year, 4 months, and 1 day. 9. The applicant states effect he was discharge for going AWOL once and received an under other than honorable conditions, when someone else who joined the Army with him went AWOL on four separate occasions and received a general discharge. Another person who also went AWOL received a general discharge as well. He believes it was unfair. His records are void of award of the BSM or an ARCOM. He was AWOL for approximately 85 days. He provides two character letters from the Soldiers he served with in Vietnam. Collectively, they shared the difficulties as well as going through a lot at such a young age while serving in Vietnam. The transition back to a unit in the U.S. was difficult as well while still being so far from home and the treatment from the leadership over him. They both support the applicant in getting an upgrade to his discharge because they believe they’re AWOL offense was the same. 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. 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 discussed the applicant’s statement, the letters of support he provided, his service in Vietnam and excellent ratings, the frequency and nature of his misconduct and whether to apply clemency. The Board determined that based on his record and the nature of his misconduct clemency should be applied and his record corrected. 2. After reviewing the application and all supporting documents, the Board determined that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period of service ending 24 August 1972 to show in Character of Service “General, under honorable conditions”. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to Honorable. 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 635-200 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. c. 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. 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 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. ABCMR Record of Proceedings (cont) AR20190002216 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190002216 5 ABCMR Record of Proceedings (cont) AR20190002216 4