IN THE CASE OF: BOARD DATE: 12 May 2021 DOCKET NUMBER: AR20200002107 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 20 January 2020 * DA Form 4980-10 (Purple Heart Certificate), awarded on 18 March 1969 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 7 January 1971 * DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) dated 26 April 2000 * Constituent Service Request Form, dated 18 January 2020 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, in effect, he does not know why his DD Form 214 does not show his character of service as honorable. As a result of legislation, the Kansas Department of Motor Vehicles changed the requirements related to receiving a Purple Heart vehicle tag. He has had these tags in the past and now he is unable to obtain these tags due to his general discharge. 3. The applicant enlisted in the Regular Army on 26 October 1967. 4. The applicant served in the Republic of Vietnam from 8 April 1968 through 26 September 1969. During his service in Vietnam, he was assigned in military occupational specialty 11B (Light Weapons Infantryman) to Company A, 1st Battalion, 327th Infantry Regiment and Company C, 54th Infantry Regiment. 5. The applicant accepted non-judicial punishment (NJP) on 5 September 1969, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order, on or about 17 August 1969. 6. Before a special court-martial on or about 30 January 1970, at Fort Riley, KS and pursuant to his plea, the applicant was found guilty of violating Article 86 of the UCMJ. * Specification 1: being absent without leave (AWOL), from on or about 18 November 1969 to on or about 25 November 1969 * Specification 2: being AWOL, from on or about 29 November 1969 to on or about 29 December 1969 * Specification 3: being AWOL, from on or about 2 January 1970 to on or about 8 January 1970 7. The applicant accepted NJP on 25 March 1970, under the provisions of Article 15 of the UCMJ, for being AWOL, from on or about 9 March 1970 to on or about 10 March 1970, and for absenting himself from his unit from on or about 0600 hours 23 March 1970 to on or about 1500 hours 23 March 1970. 8. The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, his DD Form 214 shows he was discharged on 7 January 1971, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 5, early separation of overseas returnees. He was credited with 3 years and 19 days of net active service, and his service was characterized as under honorable conditions (general). His DD Form 214 shows he was separated in the rank/grade of specialist four (SP4)/E-4, and he was awarded or authorized the following awards and decorations: * Air Medal * Army Commendation Medal * Vietnam Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * National Defense Service Medal * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M14/M16) 9. The applicant petitioned the ABCMR for correction of his DD 214 for the period ending 7 January 1971. The ABCMR considered his request on 13 January 2000, determined that his record should be corrected, and voted to grant relief. Consequently, a DD Form 215 was issued on 26 April 2000, which corrected the applicant's DD Form 214 to show the following additional awards and decorations: * Purple Heart * Bronze Star Medal * Vietnam Service Medal with one silver service star * Republic of Vietnam Gallantry Cross with Palm Unit Citation Badge * Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation Badge 10. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. 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 the reason for his separation. Evidence in the record show the applicant served 17 months in Vietnam and was awarded a Purple Heart and Bronze Star. The Board agreed that the applicant’s case was harsh and warrants clemency based on the applicant’s previous honorable periods of service and the facts and circumstances that led up to the discharge. The Board found that the applicant’s case warrants an upgrade of his discharge to honorable. 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, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as 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. 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. The version in effect at the time provided 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. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records on 25 July 2018 [Wilkie Memorandum], 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) AR20200002107 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200002107 5 ABCMR Record of Proceedings (cont) AR20200002107 4