ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 July 2020 DOCKET NUMBER: AR20190006745 APPLICANT REQUESTS: An upgrade of his characterization of service to general or honorable in lieu of under other than honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or 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 (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 as a young boy, just out of high school, he enlisted in the Army under the buddy plan, and he was not ready for what was coming. He had a routine of daily training, but the goal was not clear, and he was a long way from home. He did his job and made some mistakes, but that was 48 years ago. He believes had he received the appropriate counseling he would have gotten on the right track, his attitude would have improved, and he would have stayed on course. 3. On 21 December 1970, at age 19, the applicant enlisted in the Regular Army for 3 years. a. He completed training and was assigned to Vietnam from 28 May 1971 to 17 January 1972. While in Vietnam he received nonjudicial punishment on 4 December 1971, for having his M-16 Rifle in his room on 15 March 1971; his punishment consisted of reduction to pay grade E-2 and a forfeiture of pay b. On 18 January 1972 he was enroute back to the United States and due to report to Fort Hood, TX. On 9 March 1972 his duty status shows as AWOL and on 26 April 1972 he was dropped from rolls. He received NJP on 1 June 1972, for being absent without leave (AWOL) from 28 March to 15 May 1972; his punishment consisted of reduction to paygrade E-3, a forfeiture of pay, and restriction c. His DA Form 20 (Personnel Qualification Record) confirms he was AWOL from 28 March to 14 May 1972 and from 5 June to 24 July 1972, and he was in confinement at the Personnel Control Facility, Fort Leonard Wood from 25 July to 21 August 1972. d. His record is void of the specific circumstances surrounding his separation; however, it does provide: (1) Special Orders Number 235, U.S. Army Training Center, Fort Leonard Wood, dated 22 August 1972, confirming the applicant was discharged under conditions other than honorable, for the good of the service, effective 24 August 1972. (2) A DD Form 214 that was prepared at the time of separation shows: * Effective Date of Separation: 24 August 1972, * Characterization of Service: Under Other Than Honorable Conditions * Grade, Rate or Rank: Private/E-1. * Net Service this Period: 1 year, 4 months, and 3 days * Reason and Authority: Army Regulation (AR) 635-200, separation program number 246 [for the good of the service] * Reentry Code: RE-3 and 3B [as shown on the DD Form 215 * Remarks: 123 days of lost time 4. On 10 January 1975, the Army Discharge Review Board (ADRB) reviewed his discharge and found it proper and equitable and voted to deny him a change in the character of service and the reason for discharge. 5. AR 635-200, chapter 10, states a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an Undesirable Discharge Certificate. Discharges under this provision are voluntary requests for discharge in lieu of trial by court-martial. 6. In reaching its determination, the Board can consider the applicant’s petition, his age, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service to include service in Vietnam, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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. 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. AR 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an Undesirable Discharge Certificate. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was 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 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. ABCMR Record of Proceedings (cont) AR20190006745 5 1