BOARD DATE: 13 March 2020 DOCKET NUMBER: AR20190014525 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. 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), dated 23 September 2019 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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 it has been 50 years since he served in the Army. He has grown as a man. Looking back at his youth, he regrets that he did not fulfill his time serving this great country. He has been a model citizen and respectfully asks that his discharge be upgraded. 3. The applicant enlisted in the Regular Army on 24 April 1968. 4. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on multiple occasions: * on 4 June 1968, for absenting himself from his unit without authority (AWOL), from on or about 2 June 1968 through on or about 3 June 1968 * on 9 April 1969, for failing to obey a lawful order by being in an off-limits area, on or about 7 April 1969 * on 4 September 1969, for failing to obey a lawful order by being in an off-limits area, on or about 3 September 1969 * on 8 September 1969, for failing to go at the time prescribed to appointed place of duty, on or about 5 September 1969 * on 27 January 1970, for being AWOL, from on or about 22 January 1970 through on or about 27 January 1970 * on 17 June 1970, for being derelict in the performance of duties by willfully failing to prepare food for his unit, on or about 16 June 1970 * on 31 August 1970, for being AWOL, from on or about 25 August 1970 through on or about 31 August 1970 5. Before a special court martial on or about 2 March 1971, at Fort Sill, Oklahoma, the applicant was found guilty of being AWOL from his unit on or about 1 September 1970 through on or about 1 March 1971. The court sentenced him to be confined at hard labor for four months and to forfeit $50 pay per month for five months. The sentence was approved and ordered duly executed on 17 March 1971. 6. Court-martial charges were preferred against the applicant on 13 August 1971, for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with being AWOL, from on or about 20 March 1971 through on or about 11 August 1971, and for violating the conditions of his parole by failing to return to the Post Stockade at the prescribed time, on or about 20 March 1971. 7. The applicant’s record is void of his separation documents. However, his record contains: a. Special Orders Number 258, issued by Headquarters, U.S. Army Field Artillery Center and School, Fort Sill, OK on 15 September 1971, which ordered his undesirable discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service, effective 16 September 1971. b. DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), which shows he was discharged on 16 September 1971, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. His DD Form 214 further shows he was discharged in the rank/grade of private/E-1 and was issued a DD Form 258A (Undesirable Discharge Certificate). He served one year in Vietnam and was credited with two years, three months and 29 days of total active service. 8. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no information that would indicate the contrary. Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service. 9. The Board should consider the applicant's statement and provided evidence in accordance with the published equity, injustice, or clemency determination 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, the frequency and nature of his misconduct, the charges against him, the absence of a separation packet, and the reason for his separation (request in lieu of court-martial). The Board found insufficient evidence of in-service mitigation to overcome the misconduct; the applicant made a statement but provided no additional 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. The Board concurs with the corrections 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 : : : 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, except for the corrections stated in the Administrative Note(s) that follow, 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): The applicant’s records contain awards that are not reflected on the DD Form 214 for the period of service ending 16 September 1971. The following awards should be added to item 24 (Decorations, Medals, Badges, Commendations…) – “NDSM, PRCHT Badge, VSM, RVNCM w/1960 Dev and 2 O/S Svc Bars.” 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. 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, Boards 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) AR20190014525 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190014525 6 ABCMR Record of Proceedings (cont) AR20190014525 4