ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 September 2019 DOCKET NUMBER: AR20190009581 APPLICANT REQUESTS: reconsideration of his prior requests for upgrade of his discharge under other than honorable conditions (UOTHC) and change to his narrative reason for separation to entry level separation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) FACTS: 1. 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 123.01 on 5 August 1981, AC94-06578, on 20 July 1994, and AR2002073381 on 19 November 2002. 2. The applicant states: a. He is requesting to change the characterization of his discharge from UOTHC to uncharacterized and his narrative reason for separation to entry level separation. b. Please send a copy of his upgraded discharge to his Representative in Congress, as she is helping him with his pension and compensation for getting hurt while he was in the Army. 3. The applicant was inducted into the Army of the United States on 29 November 1967 and served in Vietnam from 8 May 1968 through 3 June 1969, where his conduct and efficiency were rated as unsatisfactory. 4. A DD Form 493 (Extract of Military Records of Previous Convictions) shows he was arraigned and tried by special court-martial in Vietnam on 29 May 1969, where he was charged with and found guilty of the following: * absence without leave (AWOL) from 21 March 1969 – 28 March 1969 * missing work call on 3 April 1969 * disrespect toward a superior noncommissioned officer (NCO) * disobeying a lawful order of a superior NCO * wrongfully communicating a threat 5. On 29 May 1969, he was sentenced to forfeiture of $45.00 per month for 6 months, reduction to lowest enlisted grade, and confinement at hard labor for 6 months. The sentence was approved on 3 June 1969. 6. A report of psychiatric evaluation, dated 10 November 1970, shows: * the applicant was evaluated on the date of the document after referral for psychiatric evaluation by his chain of command * he was diagnosed with immature personality (passive-dependent, passive- aggressive type) and chronic alcohol addiction * there was no evidence of a mental disease, defect, or derangement sufficient to warrant medical disposition under the provisions of Army Regulation 635-40 (Standards of Medical Fitness) * he was capable of distinguishing right from wrong and adhering to the right; he was responsible for his actions and possessed the mental and emotional capacity to understand and participate in administrative proceedings * it was not believed the applicant was amenable to any form of punishment, retraining, or other forms of rehabilitation within the military setting * he was psychiatrically cleared for separation from the service 7. On 23 November 1970, the applicant was notified by his immediate commander of his intent to discharge him from the Army under the provisions of Army Regulation 635-206 (Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion), because of his extended unauthorized absence. He was informed of his right to submit statements in his behalf and be represented by counsel. The applicant acknowledged notification on 23 November 1970. 8. On 24 November 1970, his immediate commander requested the applicant’s elimination from the Army under the provisions of Army Regulation 635-206, with an undesirable discharge certificate for his period of AWOL from on or about 10 July 1969 through 14 September 1970. His commander further referenced the applicant’s AWOL from 21 March 1969 through 28 March 1969 and his unsatisfactory conduct and efficiency ratings. Trial by court-martial was deemed inadvisable. 9. On 10 December 1970, the approval authority directed the applicant’s separation from the Army under the provisions of Army Regulation 635-206, with an Undesirable Discharge Certificate. 10. His DD Form 214 shows he was discharged accordingly on 18 December 1970, after 1 year, 9 months, and 8 days of net service this period with 497 days of lost time from 21 March 1969 through 27 March 1969, 20 April 1969 through 15 May 1969, 10 July 1969 through 13 September 1970, 11 October 1970, and 17 November 1970 through 18 November 1970. His service was characterized as UOTHC and his reason and authority for discharge is listed as Army Regulation 635-206, separation program number 282 (Misconduct – prolonged unauthorized absence for more than 1-year – desertion). 11. The applicant applied to the Army Discharge Review Board (ADRB) and the ADRB Special Review Board on two occasions requesting discharge upgrade. In both cases, the ADRB denied his request, on 7 June 1973 and again upon appeal on 8 December 1977, having deemed his discharge to have been both proper and equitable. 12. The applicant previously applied to the ABCMR on three occasions, and on all three occasions, on 5 August 1981, 20 July 1994, and 19 November 2002, the Board denied his request for discharge upgrade, failing to find evidence that demonstrated the existence of a probable error or injustice. 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 to include service in Vietnam, the frequency and nature of his misconduct, the results of a court-martial and the reason for his separation. The Board considered the report of psychiatric evaluation in the record and the absence of evidence showing an injury. The Board found insufficient evidence of in-service mitigation to overcome the repeated misconduct and the applicant provided no evidence of post-service achievements of 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. 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. 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 2. Army Regulation 635-206 (Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion), in effect at the time, provided for the administrative separation or retention of enlisted personnel who have committed an act of misconduct, to include unauthorized absence. a. Discharge for desertion or AWOL may be ordered when: * the unauthorized absence continued for 1 year or more * retention in the service is precluded by regulations or not considered desirable or in the best interest of the U.S. Government * trial by court-martial on a charge of desertion or AWOL is waived b. When an individual is discharged under this section for desertion or AWOL, an undesirable discharge will normally be given, unless the particular circumstances of the case warrant an honorable or general discharge. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. 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. c. Section II (Terms) of the Glossary defines entry-level status for Regular Army Soldiers as the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service. For ARNG and USAR Soldiers, entry-level status begins upon enlistment in the ARNG or USAR. For Soldiers ordered to IADT for one continuous period, it terminates 180 days after beginning training. For Soldiers ordered to IADT for the split or alternate training option, it terminates 90 days after beginning Phase II of Advanced Individual Training. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190009581 4 1