ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 June 2019 DOCKET NUMBER: AR20190003758 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20150018943 on 2 May 2017. Specifically, he requests an upgrade of his under other than honorable conditions (UOTHC) 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 Section1552) FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20150018943 on 2 May 2017. 2. The applicant enlisted in the Regular Army on 5 May 1966. He completed his initial entry training and was awarded military occupational specialty 62B (Engineer Equipment Repairman). 3. The applicant served in the Republic of Vietnam from on or about 5 October 1966 through on or about 29 May 1968. During this period of service, he was assigned to Company B, 84th Engineer Battalion and Company B, 589th Engineer Battalion. He was awarded or authorized the: * Republic of Vietnam Service Medal with 4 bronze service stars * Republic of Vietnam Campaign Medal with Device (1960) * Sharpshooter Marksmanship Qualification Badge with Rifle Bar 4. Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal ETS [expiration term of service]) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was reported as absent without leave (AWOL) during the following periods: * from on or about 19 August through on or about 28 August 1968 * from on or about 8 September through on or about 11 September 1968 * from on or about 7 November through on or about 11 December 1968 * from on or about 12 December through on or about 14 December 1968 * from on or about 15 December 1968 through on or about 6 January 1969 * from on or about 7 January through on or about 2 April 1969 * from on or about 4 May through on or about 4 June 1969 * from on or about 29 July through on or about 24 September 1969 5. Before a special court-martial on 11 October 1968, at Fort Hood, Texas, the applicant was convicted of being AWOL from on or about 19 August through on or about 28 August 1968; breaking restriction; and being AWOL from on or about 8 September through on or about 11 September 1968. The court sentenced him to a forfeiture of $106 pay for 3 months and reduction to the rank/grade of private/E-2. The convening authority approved the sentence on 22 November 1968. 6. Before a special court-martial on 7 January 1969, at Fort Bliss, Texas, the applicant was convicted by a special court-martial of being AWOL from on or about 7 November through on or about 12 December 1968. The court sentenced him to confinement at hard labor for 4 months and a forfeiture of $106 pay for 4 months. The convening authority approved the sentence on 16 January 1969. 7. The applicant departed Fort Hood in an AWOL status on 5 November 1969 and was immediately dropped from Army rolls as a deserter. He returned to military control at the Personnel Control Facility, Fort Hood, Texas on 13 March 1973. 8. Court-martial charges were preferred against the applicant on 21 March 1973 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 5 November 1969 through on or about 13 March 1973. 9. The applicant consulted with counsel on 23 March 1973. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf. His election shows did intend to submit statements in his behalf. His statement, submitted by counsel in his behalf, states: * his mother is deceased * his father remarried * he served in Vietnam * he served for 18 months in Vietnam without any difficulties * while serving, he couldn’t take his wife with him, so it put a strain on his marriage * his wife keep threatening to divorce him, if he didn’t come home * the first time he went AWOL, his wife was left homeless after his in-laws house burned down * he didn’t feel he could adjust to military life due to the long absence from his family 10. The separation authority approved the applicant's request for discharge on 17 April 1973, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of trial by court-martial. 11. The applicant was discharged 23 April 1973, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court- martial. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows his service was characterized as UOTHC. 12. In the applicant's original case, the Army Review Boards Agency Senior Medical Advisor provided an advisory opinion, in which he found no evidence of a medical disability or condition that would support a change to the character or reason for discharge in this case. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, and clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief and amend the Army Board for Correction of Military Records (ABCMR) decision in Docket Number AR20150018943 on 2 May 2017. 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 the applicant’s statement that he was experiencing marital difficulty, coupled with the additional factors that he served two tours in Vietnam, and had served honorably prior to the misconduct to be compelling. Therefore, the Board found that the discharge characterization was mitigated. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :x :x :x GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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 AR20150018943 on 2 May 2017. 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 for the period ending “23 Apr 73” showing his characterization of service as “General Under Honorable Conditions,” the narrative reason as “Miscellaneous/General Reasons,” the separation code (SPD) as “JND”, and Authority as “AR 635-200, para 5-14.” 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, U.S. Code, 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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. c. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a UOTHC discharge is normally considered appropriate. 3. 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) AR20190003758 5 1