ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 July 2019 DOCKET NUMBER: AR20190005232 APPLICANT REQUESTS: The applicant requests 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) * Self-Authored Statement * DD Form 214 (Report of Separation from Active Duty) for period ending 24 November 1975 * Letter from the Department of Veterans' Services, Town Wilmington, MA, Veterans Service Officer, dated 5 March 2019 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: a. He volunteered for the draft and was sent to Fort Jackson, SC, where he completed his basic training. After completion of basic training he was assigned to Fort Polk, LA, for advanced individual training (AIT) for the military occupational specialty 11B (Infantryman). Upon completion of AIT he was shipped to Vietnam and assigned to the 9th Infantry Division which was located at the Mekong Delta. He performed many missions while there, doing his part and supporting his brothers and unit. He was awarded the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Vietnam Unit Citation, and his Combat Infantryman Badge. b. One day while he was at the Mekong Delta he was approached by his squad leader who told him that he received a red cross message and he was going home on emergency leave due to his father's failing health. The doctor did not expect his father to survive very long and requested that he be there, as he was his last son still living at home with him. While the applicant was home on emergency leave, he applied for a compassionate reassignment so he could remain home and care for his father. He had reservations about leaving his father in that condition. He eventually received notification that he was denied compassionate reassignment and he was to return to Vietnam, although it did not provide a return date. c. He knew he had to return to Vietnam and he under the assumption that the Army would send him notification regarding when he needed to return. He did not hear back from the U.S. Army until years later when he was notified that the U.S. Army was looking for him as a deserter. He figured that seeing how the Army did not reach out to him and he was right at home, easy to find and not hiding, that they possibly reversed their decision as he did not hear back from them until years later. Once he heard this news, he immediately began to look for a local lawyer. d. He found a lawyer with a military background from Tewksbury, MA. The applicant informed him of the circumstances which he knew and believed to be true and his advice was for the applicant to leave the country until he arranged the applicant’s surrender. The applicant knowing he had experience in this area and a military background, followed his advice. Once he had everything arranged on his end, the lawyer reached back out to the applicant and had him turn himself in. This was the only time he "hid" from anything, following the advice from a lawyer. The same lawyer represented him during his court-martial proceedings. He received an under other than honorable conditions discharge. e. He knew he was wrong, but due to the circumstances at the time, he is requesting a general under honorable conditions or an honorable discharge for serving in the U.S. Army in Vietnam. 3. On 18 September 1967, at the age of 19 years old, the applicant was inducted into the Army of the United States. After completing initial entry training he was assigned overseas in Vietnam. 4. His record shows the applicant was authorized emergency leave from 2 May 1968 for 30 days for the reason of his critically ill father. On 5 October 1968, his status changed from leave to absent without leave (AWOL). On 6 November 1968, he was dropped from the rolls. 5. His record contains correspondence between the applicant’s attorney, the applicant’s mother, the Secretary of the Army, the Adjutant General, and congressmen regarding the applicant’s situation and arranging for the applicant’s return to military control. 6. On 1 November 1973, the applicant surrendered to military authorities. On 5 November 1973, charges were preferred against the applicant for being AWOL from 5 October 1968 and remaining absent until 1 November 1973. On 8 November 1973, the applicant requested discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, discharge for the good of the service. The chain of command recommended disapproval and the appropriate authority denied his request. 7. On 21 January 1974, the applicant was convicted by general court-martial for being AWOL from 5 October 1968 and remaining absent until 1 November 1973. He was sentenced to be discharged with a bad conduct discharge, to forfeit $100.00 of pay for ten months, to be reduced to private one (PV1)/E-1, and to perform hard labor without confinement for three months. On 13 March 1974, the convening authority approved only so much of the sentence as provides for the bad conduct discharge, the forfeiture of pay, and the reduction to PV1/E-1; disapproving the sentence of hard labor without confinement. 8. On 23 January 1975, the U.S. Army Court of Military Review (USACMR) affirmed the findings of guilty and the sentence. On 15 February 1975, the applicant was notified of the USACMR decision. The applicant petitioned the U.S. Court of Military Appeals (USCMA) to grant a review of his case. On 9 May 1975, the USCMA denied his petition to grant a review of his case. On 17 May 1975, the sentence was ordered executed. 9. On 24 November 1975, the applicant was discharged accordingly. His service was characterized as under other than honorable conditions with a Bad Conduct Discharge Certificate. He completed 3 years, 1 month, 10 days of net active service this period with 1 year of Foreign Service. His DD Form 214 shows: * He was awarded or authorized: * National Defense Service Medal * Vietnam Service Medal * Republic of Vietnam Campaign Medal * Vietnam Unit Citation * M-16 Rifle Marksman Marksmanship Qualification Badge * M-14 Rifle Sharpshooter Marksmanship Qualification Badge * 1853 days lost from 5 October 1968 – 1 November 1973 (AWOL) 10. The applicant provides a letter from the Department of Veterans' Services, Town Wilmington, MA, Veterans Service Officer to the Army Review Boards Agency, dated 5 March 2019, listing the documents submitted by the applicant. 11. AR 635-200 (Personnel Separations – Enlisted Personnel) states 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. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and after completion of appellate review and after such affirmed sentence has been ordered duly executed. 12. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. 13. The applicant states he knew he was wrong for being AWOL, but due to the circumstances at the time, he is requesting a general under honorable conditions or an honorable discharge for serving in the U.S. Army in Vietnam. His record shows he enlisted at the age of 19 years old and he was convicted by general court-martial for AWOL, which resulted in 1853 days lost. The applicant was credited with 37 months and 10 days of active service and he had a 36 months contractual obligation 14. In reaching its determination, the Board can consider the applicant's age at the time of his misconduct, his petition, and his service record in light of the published DOD guidance on equity, injustice, or clemency. 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 considered the applicant’s service record, his conduct in Vietnam, the granted emergency leave, his statement regarding the length of his absence, correspondence in the record related to a hardship discharge and the circumstances of his return to military control. The Board found insufficient mitigation to overcome the length of his AWOL and the applicant provided no additional documents of post-service conduct or letters of recommendation in support of clemency. The Board determined that, by preponderance of evidence, that the character of service he received at discharge was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. 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 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. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. It states 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: a. An honorable discharge is a separation with honor. 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. 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. c. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. d. A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and after completion of appellate review and after such affirmed sentence has been ordered duly executed. 3. Title 10, section 1552 provides court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 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 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. ABCMR Record of Proceedings (cont) AR20190005232 6 1