IN THE CASE OF: BOARD DATE: 11 July 2019 DOCKET NUMBER: AR20190004575 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 293 (Application for Review of Discharge) 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 the issue in question was a one-time offense of trying to bring a small amount of marijuana out of Vietnam. He was caught and reprimanded for the offense. At a young age of 19, he realizes it was wrong. He lives his life with regret and wishes to have it changed to reflect the honor and service he gave to this country in the time of need for the war in Vietnam. He has lived his life free of any other offenses since that time. 3. On 30 November 1967, the applicant enlisted in the Regular Army for three years at the age of 17. He successfully completed advanced individual training and on 27 May 1968, at the age of 18, he was assigned to 630th Ordnance Company, Vietnam and received conduct ratings of excellent until December 1968. 4. On 29 December 1968, he received non-judicial punishment (NJP) for: * Being absent without proper authority from on or about 2100 hours, 23 December 1968 to on or about 2245, 23 December 1968 * Walking in an off limits village in Vietnam * Violating curfew and walking in an off limits village in Vietnam. 5. General Orders Number 232 dated 1 March 1969 show the applicant was awarded the Bronze Star Medal with "V" device for heroism when on 23 February 1969, he distinguished himself by exceptionally valorous actions while serving as a bulldozer operator when enemy force of unknown size attached the Qui Nhon Ammunition Base Depot. Early in the morning, when enemy mortar rounds first struck three ammunition pads, the applicant was called upon to bring his bulldozer into the immediate area of impact where ammunition fires raged out of control. Although he was repeatedly exposed to shrapnel and flying debris, he continued to operate his bulldozer as directed and in a bold effort to extinguish the fires and smother exploding ammunition. With complete disregard for his own safety he skillfully performed each task for which he was called upon, until the fires and explosions were contained. Consequently millions of dollars of ammunition was saved. Through his unrelenting courage and determination he contributed immeasurably to the success of the mission. 6. On 18 December 1968 the applicant voluntarily requested and was approved for a 6 month extension to continue serving in the Republic of Vietnam. 7. On 6 May 1969, he received NJP for failing to obey a lawful written regulation by being out after curfew in Vietnam. 8. On 27 December 1969, an involuntary extension request beyond the applicants date expected to return from overseas (DEROS) was requested for the purpose of completing and investigation for possession of marijuana and attempting to unlawfully send through the mail. 9. A report of Medical Examination dated 29 December 1969 for separation shows a summary of defects and diagnosis of Thoracic Scoliosis Spine and recommend further examination by an orthopedic surgeon for back trouble. The examination does not indicate whether the applicant is or is not qualified for separation. 10. On 7 January 1970, discharge orders were published showing the applicant’s effective date of discharge as 8 January 1970 with an UOTHC certificate. 11. His record is void of a separation packet. His DD Form 214 shows he was awarded the Bronze Star Medal, Vietnam Service Medal, Vietnam Campaign Medal, and the National Defense Service Medal; and: * Separation Date: 9 January 1970 * Net Service This Period: 2 years, 1 month, and 10 days * Reason and Authority: AR 635-212 SPN 28B * Type of Separation: Discharge * Character of Service: Under Other Than Honorable Conditions * Foreign and/or sea service: USARPAC 1 year, 7 months, and 4 days 12. AR 635-212, provided that Soldiers would be discharged by reason of unfitness. An undesirable discharge was normally issued unless the particular circumstances warranted otherwise. 13. His record is void of a separation packet that provides details of his separation; however, an involuntary extension shows he was pending investigation for possession of marijuana and attempt to send it through the mail. His record shows he enlisted at the age of 17, he completed training at the age of 18 and assigned to the Republic of Vietnam where he served in 6 campaigns from 27 May 1968 to 31 December 1969 and awarded the Bronze Star with "V" device for heroism. He completed 2 years, 1 month and 10 days of his 3 year service obligation, with only 5 months of his service being outside of the Republic of Vietnam. 14. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records ad published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s record to include his Vietnam service, his BSM-V, the frequency and nature of his misconduct, his statement and whether to apply clemency. The Board found sufficient mitigating factors for the misconduct and while the applicant provided no post-service accomplishments or letters of reference determined that clemency was warranted. Based on the preponderance of evidence the Board determined that the character of service the applicant received at separation was too harsh. Further, the Board concurs with the corrections stated in the Administrative Note(s) below. 2. After reviewing the application and all supporting documents, the Board determined that relief was not warranted. 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: In addition to the corrections noted below, the Board determined the evidence presented is sufficient to warrant a recommendation for relief. 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 of service ending 9 January 1970 to show in item 13a. (Character of Service) – 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 his records provides information not listed on his DD Form 214. The applicant served in the Republic of Vietnam from 27 May 1968 to 31 December 1969. As a result, correct his records by deleting Vietnam Service Medal and the Bronze Star Medal and adding: * Bronze Star Medal with "V" device * Vietnam Service Medal with one silver service star and one bronze service star * Meritorious Unit Commendation * Republic of Vietnam Gallantry Cross w/Palm Unit Citation 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. AR 635-212, as then in effect, set forth the policy for administrative separation for Soldiers due to unfitness. It provided that Soldiers would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted otherwise. 3. AR 635-200 (Active Duty Enlisted Administrative Separations) provides for the separation of enlisted personnel, it provides: 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. 4. 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 based on 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.