ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  25 June 2019

	DOCKET NUMBER:  AR20190004211


APPLICANT REQUESTS:  in effect, 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), with self-authored statement dated  
21 February 2019 
*	DD Form 214 (Armed Forces of the United States Report of Transfer or 
Discharge), for the period ending 17 May 1970
*	DD Form 214, for the period ending 30 August 1971
*	four letters of support, dated between 29 June 2017 and 6 February 2018
*	Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of 
Claim), dated 20 February 2018

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, in effect:

   a.	He does not disagree that he made a mistake.  He was an excellent Soldier until 
that point and he has been a model citizen since his discharge.

   b.	Prior to his tour in Vietnam, he reenlisted and received an honorable discharge. 
During his tour in Vietnam (Aug 1970 – Aug 1971), he made a grave error and became 
addicted to heroin.  He was arrested and incarcerated for possession of narcotics.  
While awaiting trial, he was informed he could face a dishonorable discharge and  
10-20 years in Leavenworth, if convicted.  During this time, he endured several rape 
attempts.
   c.	While awaiting trial, he spoke with a lawyer and asked how he could get out of 
the situation as fast as possible (the attempted rapes were a big consideration).  His 
lawyer advised him to submit a request for a Chapter 10 discharge for the good of the 
service.  This would allow him to avoid a trial and receive a UOTHC discharge, thus he 
agreed and was discharged.  During his time in confinement, he quit drugs cold turkey 
without any professional counseling.

   d.	Since being discharged, he has become model citizen and has not been in any 
trouble.  He doesn’t use drugs or drink alcohol.  He volunteers to help people in need. 
These events happened so long ago, he feels the character of his discharge does not 
represent the man he has become.

3.  The applicant was inducted into Army of the United States on 21 August 1969.  He 
was honorably discharged on 17 May 1970, for immediate enlistment in the Regular 
Army.  The DD Form 214 he was issued shows he was credited with completing  
8 Months and 27 days of active service.  

4.  The applicant enlisted in the Regular Army on 18 May 1970.

5.  The applicant accepted nonjudicial punishment (NJP) on 1 July 1971, under the 
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for absenting 
himself from his unit without authority, from on or about 25 June 1970 through on or 
about 29 June 1970.     

6.  The applicant’s discharge packet is not available for review; however, his record 
contains the following documents that show:

   a.	Several DA Forms 268 (Report of Suspension of Favorable Personnel Actions) 
show his commander initiated flagging actions against him on the following occasions:

*	on 12 January 1971, due to the initiation of an investigation into his absent 
without leave (AWOL) status on 12 January 1971
*	on 28 January 1971, due to the initiation of separation actions under the 
provisions of Army Regulation 635-212 (Discharge – Unfitness and 
Unsuitability)
*	on 2 April 1971, due to his pending court-martial for suspected possession of 
dangerous drugs, being in an off limits area, and violating Article 86 of the 
UCMJ

   b.	DA Form 2800 (CID Report of Investigation), dated 8 April 1971, showing he was 
found to be in the possession of 33 vials of heroin. 

   c.	Court-martial charges were preferred against the applicant on 14 April 1971 for 
violations of the UCMJ.  The specific charges are not available for review; however, the 
aforementioned DA Form 268 shows he was pending trial before a court-martial for 
narcotics possession.

   d.	DA Form 2800, dated 3 May 1971, showing he was found in an off limits 
establishment on 22 April 1971; he then pointed a loaded weapon at a military police 
officer who was on patrol.

   e.	Court-martial charges were again preferred against the applicant on 20 May 
1971 for violations of the UCMJ.  The specific charges are not available for review.

   f.	The Battalion Surgeon evaluated the applicant on 8 June 1971 and 10 June 
1971.  His statements showed the applicant:
*	was treated several times at the Battalion Aid Station
*	had continued family problems since childhood 
*	had marital problems and had been alienated from his wife since his kids 
were born
*	did not complete high school
*	admitted to using heroin before the military and in Vietnam
*	had been treated for heroin abuse before but couldn’t abstain from the drug
*	admitted to taking valium on 5 June 1971, to try to withdraw from drugs but 
lost count and took too many
*	was evaluated for separation and found to have a character and behavior 
disorder but no evidence of psychosis or neurosis
*	was recommended for a Chapter 10 discharge
 
7.  Special Orders Number 242, issued by Headquarters, U.S. Army Personnel Center, 
Fort Lewis, WA on 30 August 1971, ordered the applicant to be discharged under the 
provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 
for the good of the service, with a UOTHC discharge.  

8.  The applicant was discharged on 30 August 1971.  The DD Form 214 he was issued 
confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 
10 and his service was characterized as UOTHC.  His DD Form 214 further shows in:

*	Item 18c (Statement of Service – Total Active Service), he was credited with 
completing 2 years, and 6 days
*	Item 26 (Non-Pay Periods Time Lost), 25 Jun -28 Jun 70
*	Item 30 (Remarks), includes the entries: "VN SERVICE:  8 Jul 70 – 7 Jul 71" and 
"Item 15:  4 DAYS LOST UNDER SEC 972 TITLE 10 USC:  25 Jun – 28 June 
1970."

9.  The issuance of a discharge under the provisions of Army Regulation 635-200, 
Chapter 10, required the applicant to have requested from the Army – voluntarily, 
willingly, and in writing – discharge in lieu of trial by court-martial.  It is presumed that all 
requirements of law and regulation were met and the rights of the applicant were fully 
protected throughout the separation process.  The applicant has provided no 
information that would indicate the contrary.  Further, it is presumed that the applicant’s 
discharge accurately reflects his overall record of service.  

10.  The applicant submitted four support letters stating in effect:

   a.	A letter from the Scranton Vet Center, dated 29 June 2017, which states he 
suffers from a psychiatric condition, anxiety, depression, and post-traumatic stress 
disorder (PTSD).  He served as a mail handler during Vietnam.  He saw helicopters shot 
down and fellow Soldiers killed in action.  He was fearful for his life many times and still 
remembers some of his horrific experiences.  He currently suffers from increasing 
nightmares of at least six per month, and poor sleep due to the above incidents.  He 
continues to avoid thoughts, feelings, or conversations associated with the trauma.  He 
will not discuss any personal events with anyone involving his service in Vietnam. 

   b.	A second letter from the Scranton Vet Center, dated 7 January 2018, restating 
some of the details listed above, and adding that his military service, along with his civil 
contributions, have led him to be an outstanding member of society.

   c.	He has been a positive influence amongst the Veterans groups and the 
community in Scranton, PA.

   d.	He served as a mentor and role model to 350 students at Delaware Job Corps.  
He is a man of good character, of honor, pride and truth.

11.  The Board should consider the applicant's statement and post service 
accomplishments in accordance with the published liberal consideration and equity, 
injustice, or clemency determination guidance.

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 service in Vietnam, his 
previous honorable discharge, the nature of his misconduct, his statement regarding his 
substance abuse issues and attempted rapes, his letters of support and post-service 
conduct and whether to apply liberal consideration guidance.  The Board determined 
that there were sufficient mitigating factors for his misconduct and that his post-service 
behaviors warranted consideration for a clemency determination.   

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 amending his DD Form 
214 for the period of service ending 30 August 1971 to show his character of service as 
“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 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 sets forth the basic authority for the separation of enlisted 
personnel.

	a.  Paragraph 3-7a states 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 states a general discharge is a separation from the Army under 
honorable conditions.  When authorized, it is issued to Soldiers whose military record is 
satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10, in effect at the time, provided that a member who committed an 
offense or offenses under the UCMJ, for which the authorized punishment included a 
punitive discharge, could submit a request for discharge for the good of the service at 
any time after court-martial charges were preferred.  Commanders would ensure that an 
individual was not coerced into submitting a request for discharge for the good of the 
service.  Consulting counsel would advise the member concerning the elements of the 
offense or offenses, the type of discharge normally given under the provisions of this 
chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of 
the characterization of such a discharge.  An under other than honorable conditions 
discharge was 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.



ABCMR Record of Proceedings (cont)	AR20190004211

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