IN THE CASE OF: BOARD DATE: 10 August 2021 DOCKET NUMBER: AR20200003081 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) discharge to a 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 Stated) * Applicant’s Statement * 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, 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: a. In approximately January 1969, he received his draft notice. He applied for conscientious objector status, as he is the oldest son of a WELS Lutheran minister. The person in charge, T_____ County, denied the request stating, "You've had a hunting license, you can go kill gooks!" This was an affront to his sensibilities. He then went to the local Air Force recruiter, in Morris MN, where he was accepted for a 4-year commitment to begin in August of 1969. Traverse County board director denied him this, stating the Army wanted him in May. b. He was drafted and signed up for 3 years for aircraft turbine engine mechanic school. He was sent to basic training (BT) at Fort Lewis, WA, where he was made a platoon guide, acting sergeant. He held that position throughout BT and let his platoon to highest honors in company competitions. He personally led the company in achievements! At the completion of BT, he was offered attendance to the Office Candidate School, turned it down when he requested assignment to Germany to serve and they said no! c. He was sent Fort Eustis, VA, for his specialty training. There he received the highest grades for his efforts. He received orders for assignment to the First Air Cavalry, De Nang, Vietnam, for 3 November 1969. He did not show up. He had learned more about the "war" in Vietnam and was against going and "killing gooks". An upper Alaskan, who had been to Vietnam as a combat infantry machine gunner, told him about following the Viet Cong into rubber plantations where American troops were not allowed to return fire, cannot hit the trees. d. He lived in San Francisco during his absent without leave time, doing carpentry work and living free. He worked for the Hallinans, attorneys who were part of the team defending the Presidio 27 (mutiny) antiwar demonstration at the stockade. They told him about the clause in the military code where he could "resign for the good of the service" and he would be a test case! When he informed the Provost Marshals who his attorney was, instead of shipping him to Fort Ord, CA, for processing, they cuffed him to the door of a twin engine Cessna and flew him to Fort Carson, CO and 28 days later he was discharged. No Article 15 or court marshal! Some 150,000 others followed him. It prompted President Fort to grant pardons to them and President Carter later extended that to include those who dodged the draft and went to Canada. He is requesting this pardon and an honorable discharge. 3. The applicant provides his DD Form 214 for the period from 16 May 1969 to 28 May 1971 and Veterans Service Officer’s letter requesting a review of his discharge. 4. The applicant’s military records are not available to the Board for review. A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973. It is believed his records were lost or destroyed in that fire. However, there were sufficient documents provided by the applicant to conduct a fair and impartial review of this case. His available DD Form 214 shows: a. He enlisted in the Regular Army on 16 May 1969, for 3 years. He held military occupational specialty 68B (Aircraft Turbine Engine Repairman). b. The complete facts and circumstance surrounding to his separation are not available for the Board to review. However, the DD Form 214 also shows he was not inducted and he was discharged in pay grade E-1 (reduced 1 September 1969), on 28 May 1971, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for the Good of the Service. His service was characterized as UOTHC. This form further shows he: * completed 7 months and 11 days of total service * zero foreign service * had time lost from 2 November 1969 to 12 June 1970, 4 August 1970 to 7 May 1971, and 10 to 27 May 1971 * was awarded/authorized the National Defense Service Medal 5. There is no indication he petitioned the Army Discharge Review Board an upgrade of his discharge within its 15-year statute of limitations. 6. By regulation (AR 635-200), an individual who has committed an offense or offenses, the punishment for which, includes a punitive discharge, may submit a request for discharge in lieu of trial by court-martial. An UOTHC normally is appropriate for a Soldier who is discharged for the good of the service; however, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. 7. Presidential Proclamation Number 43XX, dated 16 September 19XX, was issued by President Ford and affected three groups of individuals: (1) fugitives from justice who were draft evaders; (2) members of the Armed Forces who were in an unauthorized absence status; and (3) prior members of the Armed Forces who had been discharged with a punitive or undesirable discharge for violation of articles 85 (desertion), 86 (AWOL), or 87 (missing movement) of the Uniform Code of Military Justice. The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Department of Veterans Affairs. 8. 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 determination guidance. 9. By regulation AR 15-185 (ABCMR), the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. BOARD DISCUSSION: The Board carefully considered the applicants 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 reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh 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, and 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. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. The regulation stated in: a. Paragraph 3-7a (Honorable Discharge) – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier’s service generally had 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 (General Discharge) – a general discharge was 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. c. Chapter 10 – an individual who had committed an offense or offenses, the punishment for which included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service. A discharge under other than honorable conditions normally was appropriate for a Soldier who was discharged for the good of the service; however, the separation authority could direct a General Discharge Certificate, if such is merited by the Soldier’s overall record during the current enlistment. 3. Presidential Proclamation Number 4313, dated 16 September 1974, was issued by President Ford and affected three groups of individuals: (1) fugitives from justice who were draft evaders; (2) members of the Armed Forces who were in an unauthorized absence status; and (3) prior members of the Armed Forces who had been discharged with a punitive or undesirable discharge for violation of articles 85 (desertion), 86 (AWOL), or 87 (missing movement) of the Uniform Code of Military Justice. The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA. 4. 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. 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. 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. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200003081 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1