ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 August 2019 DOCKET NUMBER: AR20190006422 APPLICANT REQUESTS: The applicant request his under other than honorable conditions (UOTHC) discharge be upgraded to honorable 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. 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 AR20110010328 on 20 December 2011. 3. The applicant states because he was in love with a native Vietnam woman while stationed in Vietnam, he was bullied and picked on by his fellow Soldiers and superiors. When he professed his love for the woman and wanted to marry her, he was made to look like he was knowingly disobedient Soldier. He believed the woman was carrying his child. a. He wanted to be with her and wanted to get out of the Army once he was transferred from Vietnam to Fort Bragg, NC. He served his country admirably while in combat and believes he was singled out by a few men that didn’t care for him. He returned to Vietnam to look for his love but was unable to locate her and discovered that her village was completely destroyed. He was so distressed and thought she was his world. b. He believes his discharge should be corrected to reflect the service that he was willing to give his life for when he volunteered to enlist in the Army. He enlisted and was looking forward to serving his country admirably and honorably. His records show he had no discipline problems until he requested to marry the love of his life. 4. On 20 May 1969, the applicant enlisted in the Regular Army for three years at the age of 20. After successfully completing his initialing training and earning his parachutist badge he was assigned to D Co, 1st BN (ABN), 503rd INF, 173rd ABN BDE, USARPAC. 5. The applicant received non-judicial punishment on four separate occasions for: * On 7 July 1970, he received non-judicial punishment (NJP) failure to increase his basic load of small arms ammunition from six magazines to twenty-one * On 10 July 1970, he received NJP for failure to return directly to the English military police desk * On 11 October 1970, he received NJP for failing to obey a lawful order * On 29 January 1971, he received NJP for failing to obey a lawful order to display his TA-50 [gear] in an orderly manner 6. On 18 February 1971, the applicant underwent a physical and psychiatric examination. The physical examination shows the applicant met the physical retention standards and had the mental capacity to understand and participate in board proceedings. 7. On 19 March 1971, he was charged with willfully disobeying a lawful order from a commissioned officer and willfully disobeying a lawful order from a noncommissioned officer to remove a headband from his head and to open his locker and display his equipment for Annual General Inspection. 8. On 7 April 1971, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 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 Army Regulation 635-200, chapter 10. He signed a request for discharge for the Good of the Service and indicated he would not submit statements in his own behalf. 9. The applicant’s chain of command recommended approval of his request and the appropriate authority approved the applicant’s request on 30 April 1971; he directed the applicant be furnished an undesirable discharge. 10. On 19 May 1971, he was discharged accordingly; his DD Form 214 shows he completed 1 year, 10 months, and 14 days of net service. He was awarded or authorized the: * Vietnam Service Medal (VSM) * Combat Infantry Badge (CIB) * Vietnam Combat Medal (VCM) * Army Commendation Medal (ARCOM) 11. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in- lieu of trial by court martial. In a case in which an UOTHC is authorized by regulation, 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. 12. His record shows he graduated high school; completed basic combat training (BCT) and advanced individual training (AIT) earning military occupational skill (MOS) 11B (Rifleman) as well as graduate airborne school, earning the parachute badge. His first assignment was with an airborne infantry brigade located in Vietnam. He was awarded the CIB and an ARCOM. The highest rank he held was PFC. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements 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 statement, his record of service and assignment history, his awards and decorations, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found the applicant did not provide evidence of post-service achievements or letters of reference in support of clemency. The Board found his statement compelling and found mitigating factors for his misconduct. Based on a preponderance of evidence and considering the nature of the offenses, the Board determined that the character of service he received at discharge was too harsh. 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 corrected by amending his DD Form 214 for the period of service ending 19 May 1971 to show in item 13a (Character of Service) – “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 upgrade of his character of service 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): None 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 635-200 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) 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 is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. c. 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. 3. 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 on the basis of 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.