IN THE CASE OF: BOARD DATE: 15 October 2020 DOCKET NUMBER: AR20200003123 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AC97-09613 on 22 July 1998. Specifically, he 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 19 August 2019 * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 19 August 2019 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 11 October 1973 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC97-09613 on 22 July 1998. 2. The applicant states, in effect, he served honorably during the Vietnam War and after the war was over. Due to no fault of his own, his paperwork during his discharge was mishandled and filled out incorrectly. 3. The applicant submitted a VA Form 21-4138 (Statement in Support of Claim), dated 19 August 2019, on which he contends: a. He enlisted in the Army when he turned 17 years of age. He went to boot camp on 19 July 1972, at Fort Jackson, South Carolina. He completed boot camp and was transferred in September 1972 to Fort Campbell, Kentucky. On a date in the fall of 1973, he was coming onto the base with friends that were in his unit, when the military police (MP) saw paraphernalia in the back seat of his friend’s car and they were all arrested. He had not involved himself with drugs at any time while he was in service. He was sent to the stockade until a court hearing was convened. While he was in the stockade, he was declared absent without leave (AWOL) and a deserter. The Army has still not corrected his records. b. He was given a choice by the adjutant to either have a reduction in rank and start over in the military or be discharged with a UOTHC discharge. He never saw a court room. He took the discharge with the expectation of being able to get his discharge upgraded, as the adjutant instructed. He was sent to Fort Campbell, Kentucky, for out- processing. He never went before the court-martial review board, he was never charged with anything, and the evidence the MPs arrested him over disappeared. No evidence was brought before his case. He has never been in any form of trouble since being discharged. He is sending character references as evidence. He is requesting his DD Form 214 be corrected to show he was given an under honorable conditions (general) discharge. 4. The applicant enlisted in the Regular Army on 25 July 1972. 5. Before a summary court-martial on or about 8 June 1973, at Fort Campbell, Kentucky, the applicant was convicted of: * wrongfully possessing one ounce, more or less, of marijuana on or about 20 January 1973 * being AWOL from on or about 2 April through on or about 10 April 1973 * being AWOL from on or about 12 April through on or about 13 April 1973 6. The applicant's record contains a DA Form 20 (Enlisted Qualification Record), which shows in Block 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) that the applicant was AWOL from on or about 12 June 1973 to on or about 4 September 1973. 7. 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 11 October 1973, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 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 evidence that would indicate the contrary. 9. The applicant petitioned the ABCMR for an upgrade to his service characterization. The ABCMR considered his request on 22 July 1998, determined he was properly discharged, and denied his request for relief. 10. The Board should consider the applicant's statement 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 Department of Defense 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. 2. A majority of the Board found insufficient evidence of in-service mitigating factors and noted the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the majority determined that the character of service the applicant received upon separation was not in error or unjust. 3. The member in the minority found that, considering the applicant's non-violent offenses, the era in which he served, and the Department of Defense guidance on clemency, the applicant's character of service is too harsh. The member in the minority determined the applicant's character of service should be upgraded to under honorable conditions (general). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AC97-09613, dated 22 July 1998. 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, in effect at the time, set 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) AR20200003123 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200003123 5 ABCMR Record of Proceedings (cont) AR20200003123 4