BOARD DATE: 8 October 2019 DOCKET NUMBER: AR20190011112 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to a general or honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Review of Discharge from the Armed Forces) in lieu of a DD Form 149 (Application for Correction of Military Records) * Two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) * DD Form 215 (Correction to DD Form 214, Armed Forces of the United States Report of Transfer or Discharge) * Department of Veteran Affairs letter * Two photos of a military award * Page of 4 of his DA Form 20 (Enlisted Qualification Record) 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 he’s requesting an upgrade because of his service in Vietnam; being wounded and watching his battle buddies get killed all while doing his job to bring all of them to include himself home. He came home the United States being mistreated by civilians and got to his last duty station to receive the type of discharge he got for trying to take care of his family. He believes he did what he had to do but the military did not do their part in taking care of combat Veterans. He has diseases from duty in Vietnam, getting injured, and getting mistreated because of his discharge characterization. 3. On 4 December 1967, the applicant entered the Regular Army for three years at the age of 17 with a ninth grade education. His record is void of an enlisted qualification record that provides pertinent service record information; however, the available documents do provide: a. On 5 March 1970, the applicant underwent a special court-martial and was found guilty for being absent without authority (AWOL) from 22 November 1969 to 1 April 1970. On 28 April 1970, he was sentence to perform two hours of extra duty per day for thirty days, reduced to Private First Class (PFC) and restricted to the limits of the company area for two months. As part of his sentence he received a letter of reprimand from his battalion commander stating the applicant conducted himself in a manner prejudicial to good order and military discipline and hopes the letter of reprimand would preclude any recurrence of the type offense which he was found guilty for. b. A copy a morning report shows the applicant was listed as AWOL from 24 July 1970 and subsequently dropped from the rolls on 24 August 1970. 4. The available evidence does not provide a charge sheet; however, on 8 October 1970, 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. a. He wrote a statement indicating after his initial training at Fort Polk, LA he served 17 months in Vietnam and after his return he was assigned to Fort Hood, TX where things started to go wrong. He underwent a special court-martial for going AWOL and is now pending another court-martial for going AWOL again. He goes on to share, he’s married with a child and has served in Vietnam and in the Army for more than 28 months and did not wish to return to duty; he requested being discharge for the good of the service. b. His chain of command recommended approval of his request with an undesirable discharge. His intermediate commander wrote, “EM has RVN service and then got into difficulty this falls within more traditional basis for 635-200.” 5. On 28 October 1970, the appropriate separation authority approved the applicant's request for discharge reducing him to the lowest enlisted grade, and issuing him an undesirable discharge certificate. 6. On 2 November 1970, the applicant was discharged accordingly. His DD Form 214 shows he served 3 years, 1 month, and 13 days; approximately 58 days lost. 7. The applicants provides a copy of his DD Form 214 ending 25 December 1968; DD Form 214 ending 2 November 1970 with a DD Form 215; a picture of a purple heart with his name inscribed on it; a copy of a portion of his enlisted qualification record showing his right leg being wounded on 11 December 1968, AWOL time, and his awards received from Vietnam except the purple heart; and a copy of a benefits discharge letter from Veterans Administration. 8. 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. 9. The applicant contends he never received his Purple Heart after he was discharged. There are no orders in his MPRJ awarding him the Purple Heart. 10. Review by HRC of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Awards and Decorations Branch of HRC, failed to reveal any orders awarding the applicant the Purple Heart. 11. His available records show he completed initial training earning military occupation skill (MOS) 63C (Track Vehicle Mechanic); he received an Army Commendation Medal for outstanding achievement in connection with military operations against a hostile force in the Republic of Vietnam; awarded the National Defense Service Medal; he had 58 days lost from 24 July 1970 to 19 September 1970, and was discharge at age 20. 12. The applicant requests an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, 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 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, his previous Honorable discharge, the entry on his DA Form 20 (item 40 - Wounds), his ARCOM for achievement in Vietnam, the frequency and nature of his misconduct and the reason for his separation. The Board found evidence to support award of a Purple Heart and sufficient evidence of in-service mitigation to overcome the misconduct. Based on a preponderance of evidence, the Board determined that an upgrade of the character of service the applicant received upon separation was appropriate. The Board concurred with the correction stated in the Administrative Note(s) below. 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 : X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, in addition to the corrections stated in the Administrative Notes that follow, 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 2 November 1970 as follows: - Item 13 a. (Character of Service) – “Under Honorable Conditions” vice “Under other than honorable conditions”, and; - Item 24 (Decorations, Medals, Badges….) – Add “PH” (list corrections in this paragraph, this paragraph with lettered subparagraphs or in a series of numbered paragraphs). 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): 1. AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized. 2. As a result, amend his DD Form 214, ending 2 November 1970, by adding the Army Commendation Medal (ARCOM). 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190011112 4 ABCMR Record of Proceedings (cont) AR20190011112 1