ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20190003038 APPLICANT REQUESTS: The applicant requests upgrade of his under other than honorable conditions (UOTHC) discharge to a general under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for period ending 23 January 1970 FACTS: 1. 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 AR20070003017 on 19 September 2007. 2. The applicant submitted a DD Form 293 and a self-authored statement. He states he has been an ordained elder in the church located in Lubbock, TX. He enlisted in the service after high school graduation on 7 June 1968. He did basic training at Fort Bliss, TX and graduated 2nd in his company as acting squad leader. He went to advanced individual training at Fort Huachuca, AZ. He left as the Field Wireman, acting platoon sergeant. He was shipped to U.S. Army’s 30th Brigade and 21st Base Post Office. He was promoted to specialist (SPC)/E-4. Between 1 September 1969 and 1 October 1969, he contracted a commutable [communicable] disease, confirmed by his medical records. He does not recall much after, a lot of fevers and scratching, and the treatment did not work. He was sent to the brig and he was discharged. He went home and infected his wife. They were both treated at the Lubbock Health Department. Now he and his family request an upgrade of his discharge. 3. On 7 June 1968, at the age of 19 years old, the applicant enlisted in the Regular Army for a period of 3 years. After completing initial entry training, he was assigned overseas to Okinawa, Japan. 4. His record shows he accepted nonjudicial punishment (NJP) on: * 28 August 1969 for failing to go at the time prescribed to his appointed place of duty on two occasions, punishments: reduction to private first class (PFC)/E-3 (suspended for one month), forfeiture of pay, and restriction; and on 22 September 1969, the punishment of reduction to PFC was vacated * 6 October 1969 for failing to go at the time prescribed to his appointed place of duty and for being absent without leave (AWOL) for from 1 October 1969 and remained absent until 2 October 1969, AWOL a total of 1 day 5. On 15 November 1969, charges were preferred against the applicant for four specifications of failing to be at his appointed place of duty; one specification of being AWOL from 4 November 1969 and remained absent until 15 November 1969, AWOL for a total of 11 days; two specifications of disobeying a lawful command from a commissioned officer; two specifications of disobeying a lawful order from a commissioned officer; and one specification of being disrespectful in language toward his superior commissioned officer by saying to him "I’m going to get out of this "sh_ (expletive) anyway." The case was referred to a special court-martial. 6. On 8 December 1969, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 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 AR 635- 200, chapter 10. The applicant elected to submit a statement on his own behalf. He stated: a. He asked to be separated as soon as possible because it would benefit the U.S. Army as well as himself. He was sure that as long as he remained in the Army he would continue to break military laws. The laws he had broken would not have been held against him if he were not in the military. b. He felt the military service was a prejudice organization and would willfully refuse to obey his so-called superiors because in his opinion the majority of his so-called superiors (white) were prejudice to some large extent. 7. On 17 December 1969, additional charges were preferred against the applicant for seven specifications of disobeying a lawful order and two specifications of assault: striking a Soldier in the face and the chest with his hand and stabbing a Soldier three times in the stomach and one time in the arm with a ball-point pen. 8. On 19 December 1969, his immediate commander recommended disapproval and mentioned the additional charges which were pending against the applicant. The commander stated to allow a person to escape punishment as prescribed by military law and be discharged for the good of the service was not within the meaning of good order and discipline. On 6 January 1970, the intermediate commander recommended approval and he stated that discharge would be in the best interest of and for the good of the service. On 19 January 1970, the convening authority approved the request for Chapter 10. 9. His enlisted qualification record shows he was awarded or authorized the M-14 Rifle Expert Marksmanship Qualification Badge and the M-16 Expert Marksmanship Qualification Badge. 10. On 23 January 1970, he was discharged accordingly. His service was characterized as UOTHC. He completed 1 year, 7 months, and 11 days of total active service with 1 year, 2 months, and 2 days of Foreign Service. His DD Form 214 shows: * He was awarded or authorized the National Defense Service Medal * 6 Days Lost Time: 1-1 October 1969 and 17-21 October 1969 11. His record contains a document from the Texas State of Health Venereal Disease Clinic Record which shows on 27 February 1973, the applicant tested positive for a communicable disease. His military health treatment records are unavailable for review. 12. The applicant petitioned the Army Discharge Review Board (ADRB) to upgrade his undesirable discharge. On 12 August 1977, the ADRB denied his petition citing it was determined that the applicant was properly discharged. 13. The applicant petitioned the ABCMR to upgrade his undesirable discharge. On 19 September 2007, the ABCMR denied his petition. 14. The applicant states between 1 September 1969 and 1 October 1969, he contracted a communicable disease, confirmed by his medical records. He does not recall much after, a lot of fevers and scratching, and the treatment did not work. His record shows he was treated by a clinic for a communicable disease, post-service. His military treatment health record is unavailable for review. He enlisted at the age of 19 years old, charges of 15 specifications were preferred against him and the case was referred to a special court-martial, and he went AWOL resulting in 6 days of lost time. He completed over 12 months of his 36 months contractual obligation. 15. AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. 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. 16. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION After review of the application and all evidence, and in addition to the administrative notes below the signature, the Board determined that there is sufficient evidence to grant relief and amend ABCMR's decision in Docket Number AR20070003017 on 19 September 2007. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement, and found evidence of an injustice in that the applicant experienced racial bias and the punishment for the minor misconduct was too severe. Therefore, the Board found that the discharge characterization was mitigated. BOARD VOTE: BOARD DETERMINATION/RECOMMENDATION: In addition to the administrative notes annotated by the Analyst of Record (below the signature), The Board determined the evidence presented is sufficient to grant relief and amend ABCMR's decision in Docket Number AR20070003017 on 19 September 2007. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 showing his characterization of service as “General Under Honorable Conditions.” 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): A review of the applicant’s record shows his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for period ending 23 January 1970, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214, item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) by adding the M-14 Rifle Expert Marksmanship Qualification Badge and the M-16 Expert Marksmanship Qualification Badge. REFERENCES: 1. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel, it states: a. A Chapter 10 (Discharge for the Good of the Service) 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 was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. 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. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. 2. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. //NOTHING FOLLOWS//