IN THE CASE OF: BOARD DATE: 17 December 2019 DOCKET NUMBER: AR20190002291 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 10 January 2019 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 17 to 18 years old when he went to Vietnam. He went to prison after his Vietnam service because he was with a girl and he got into trouble for something he did not do. While in prison, a man came to see him and told him if he signed the paper he brought, he would get a general discharge. He was told if he did not sign the papers the military police would be waiting for him at the gate when he got out and he would spend 15 to 20 years in military prison, so he signed the papers. 3. The applicant enlisted in the Regular Army on 7 February 1966, at age 17. 4. Special Court-Martial Order Number 1025, issued by Headquarters, Special Troops, Fort Riley, Kansas on 10 October 1966, shows the applicant was convicted on or about 6 October 1966 of being absent with leave (AWOL) from on or about 10 June until on or about 11 June 1966, and from on or about 13 June until on or about 23 August 1966. He was sentenced to a reduction to private/E-2, confinement at hard labor for six months, and a forfeiture of $64.00 pay per month for six months. 5. The applicant served in the Republic of Vietnam from on or about 12 November 1966 through on or about 11 November 1967. 6. Special Court-Martial Order Number 689, issued by Headquarters, Special Troops, U.S. Army Training Center and For Leonard Wood, Fort Leonard Wood, Missouri on 23 April 1968, shows the applicant was convicted on or about 19 April 1968 of being AWOL from on or about 19 January until on or about 5 February 1968, and from on or about 5 February until on or about 21 March 1968. He was sentenced to a forfeiture of $65.00 pay per month for five months and confinement at hard labor for five months. 7. Special Court-Martial Order Number 1100, issued by Headquarters, Special Troops, U.S. Army Training Center and For Leonard Wood, Fort Leonard Wood, Missouri on 13 June 1968, show the applicant was convicted on or about 8 June 1968 of being AWOL from on or about 4 May 1968 until on or about 16 May 1968. He was sentenced to a forfeiture of $68.00 per month for six months and confinement at hard labor for six months. 8. The facts and circumstances pertaining to the applicant's discharge are not available for review. However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 13 February 1970, under the provisions of Army Regulation 635-206 (Personnel Separations ? Discharge ? Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)), for misconduct – conviction by civil court. He completed one year, eight months and four days of total active service and he had approximately 489 days of lost time due to AWOL and confinement. His DD Form 214 confirms he was issued a DD Form 258A (Undesirable Discharge Certificate) and his service was characterized as UOTHC. 9. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, 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, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no 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. 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. 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 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 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. 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. 3. Army Regulation 635-206, in effect at that time, provided that members would be considered for discharge when it was determined that one or more of the following applied: (a) when the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of one year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude. A discharge under other than honorable conditions is normally considered appropriate. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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) AR20190002291 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190002291 4 ABCMR Record of Proceedings (cont) AR20190002291 3