IN THE CASE OF:  
BOARD DATE: 16 July 2021 DOCKET NUMBER:  AR20210005759 
APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge. 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. DD Form 293 (Application for the Review of Discharge) . DD Form 149 (Application for Correction of Military 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 entered the service in September 1968. He was married in 1969. He was sent to Vietnam in April 1969. In November 1969, he reenlisted in order to go home. His family problems began and he could not make it back to Vietnam. When he returned, he finished his tour of duty. He returned home and his wife was pregnant. According to his wife, the baby was born two months premature. His family issues began so he did not want to leave his family. As a very young father, he thought it was the best place for him to be at the time. Now 50 years later, he regrets his actions. He and his wife are divorced. He remarried on 26 January 1980 and have been married for 40 years. He feels his wife deserves a better life. 

3. 
On 5 September 1968, the applicant enlisted in the Regular Army for a term of 3 years. 

4. 
On 5 May 1969, he was assigned overseas to the Republic of Vietnam in the military occupational specialty 63C (General Vehicle Mechanic); Principle Duty Title, Track Vehicle Mechanic. While in Vietnam, on 19 November 1969, he was honorably discharged for immediate reenlistment. On 20 November 1969, he reenlisted for a term of 3 years, at the age of 19 years old. 

5. 
His conduct and efficiency ratings from 12 September 1968 to 1 December 1970 were excellent. 

6. 
On 16 May 1970, he was assigned to Fort Knox, KY. His record shows on: 


. 6 January 1971, he went absent without leave (AWOL) and returned to military control on 22 March 1971 (75 days) 
. 4 April 1971, he went AWOL and returned on 22 April 1971 (18 days); upon his return, he was confined for 5 days 
. 27 April 1971, he went AWOL and returned on 29 April 1971 (2 days); he was confined for 14 days 
7. 
On 26 March 1971, the applicant accepted nonjudicial punishment (NJP) for being AWOL from the U.S. Army Overseas Replacement Station, Fort Jackson, SC, on 6 January 1971 and remaining absent until 22 March 1971. His punishment consisted of reduction to Private E-1, forfeiture of $60.00 pay for two months, restriction for 30 days, extra duty for 30 days, and an oral reprimand. 

8. 
On 14 May 1971, he went AWOL and returned on 8 July 1971 (56 days). On 26 July 1971, court-martial charges were preferred against the applicant for three specifications in violation of Article 86, Uniform Code of Military Justice (UCMJ), Absence Without Leave, for being AWOL from: 

. 4 April 1971, remaining absent until 22 April 1971 . 27 April 1971, remaining absent until 29 April 1971 . 14 May 1971, remaining absent until 9 July 1971 

9. 
In preparation for his pending discharge, the applicant underwent a medical examination and the examiner cleared him for separation. 

10. 
On 12 August 1971, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation (AR) 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 AR 635-200, chapter 10, and he elected to submit a statement on his own behalf. He requested the separation authority consider his statement when acting on his request for discharge. He stated/explained: 


a. His military service from the time he enlisted to the period of his last offense of AWOL. After he reenlisted on 20 November 1969, he went home on leave on 23 November 1969. He was scheduled to return to Vietnam on 22 December 1969, but he did not return until 3 February 1970. He was told by his company commander that he would be court-martialed, but never received one. He was reassigned to the U.S. and arrived on 13 April 1970. He was on leave until 16 May 1970. On 2 June 1970, his wife went into the hospital and gave birth to their son two months prematurely. In October 1970, finance collected all of his pay except $58.00 for money he received previously. 
b. 
In November 1970, he received orders for assignment to Germany, but he made up his mind he was not going. He could not take his family and he did not want to leave his family. He was scheduled to report to Fort Jackson, SC, on 6 January 1971, but he did not report. On 22 March 1971, he was apprehended. He was offered an Article 15, UCMJ but he turned it down. When he turned it down he was sent to South Carolina with a guard, which made him hate the Army even more. He went AWOL from Fort Jackson, SC. His son was in the hospital and that is where he was apprehended by the county police due to a warrant issued for his arrest for a traffic ticket. He was in jail for 14 days and received a $50.00 fine. The military police picked him up and took him to Fort Knox, KY. 

c. 
He was prompted to request discharge because he faced a special court-martial for AWOL, in which he could receive punishments of confinement and forfeiture. He realized he was guilty of being AWOL. He was aware he may have received an undesirable discharge if his request was approved. He was willing to accept the discharge, but sending him back to confinement or to duty would only result to more AWOLs and a waste of money to the service. He would not return to duty. 


11. 
His chain of command recommended approval of the chapter 10 and on 19 August 1971, the appropriate separation authority approved the applicant's request directing he be issued an Undesirable Discharge Certificate. The applicant was a Private E-1 at the time the separation authority approved his discharge. 

12. 
On 25 August 1971, he was discharged accordingly. His service was characterized as UOTHC. He completed 1 year, 3 months, and 16 days of his 3-year contractual obligation. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he had 170 days lost time and he was awarded or authorized: 

. Vietnam Service Medal . Republic of Vietnam Campaign Medal with 60 Device . Army Commendation Medal 

13. 
The applicant requests an upgrade. He states in November 1969, he reenlisted in order to go home. His family problems began and he could not make it back to Vietnam. When he returned, he finished his tour of duty. He returned home and his wife was pregnant. According to his wife, the baby was born two months premature. His family issues began so he did not want to leave his family. As a very young father, he thought it was the best place to be at the time. Now 50 years later, he regrets his actions. He 


and his wife are divorced. He remarried on 26 January 1980 and have been married for 40 years. He feels his wife deserves a better life. 
a. 
His record shows, he reenlisted at the age of 19 years old; he accepted one NJP; court-martial charges were preferred against him for being AWOL; and he had 170 days lost time; AWOL for 151 days and confinement for 19 days. He completed 1 year, 3 months, and 16 days of his 3-year contractual obligation. 

b. 
AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. Soldiers could request separation when charges have been preferred against them for which under the Uniform Code of Military Justice and Manual for Courts-Martial (MCM) included a bad conduct or dishonorable discharge (punitive discharge). Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. A medical examination was required for separation under chapter 10, a mental status evaluation was not required. 

c. 
According to the MCM, Article 86, UCMJ –– Absence without leave, for more than 30 days, punishment included a punitive discharge. 


14. 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 light of the published DOD guidance on equity, injustice, or clemency. 
BOARD DISCUSSION: 
After reviewing the application and all supporting documents, to include the DoD guidance for consideration of discharge upgrade requests, the Board determined relief was warranted. The Board considered the applicant's statement, his record of service to include service in Vietnam, his prior honorable service, his conduct and efficiency ratings, the frequency and nature of the misconduct and the reason for his separation.  Based upon a preponderance of evidence, to include the applicant’s Vietnam service and the misconduct involved, the Board determined there was sufficient evidence to grant an upgrade of the applicant’s characterization of service to General, Under Honorable Conditions as a matter of clemency. 
BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XXX :XX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 
BOARD DETERMINATION/RECOMMENDATION: 
1. 
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 Under Honorable Conditions (General). 

2. 
Prior to closing the case, the Board noted the administrative note below from the analyst of record and recommended making those changes as well to more accurately reflect the military service of the applicant. 


X 
CHAIRPERSON 
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): 
A review of the applicant's record shows his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 25 August 1971, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214, item 13 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) by: 
. Deleting the Vietnam Service Medal 
. Adding: 
o 
Vietnam Service Medal with 3 bronze service stars 

o 
National Defense Service Medal 


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. 
AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. 


a. 
An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization will be conditioned upon proper military behavior and proficient performance of duty during the member's current enlistment of current period of service with due consideration for the member's age, length of service, grade, and general aptitude. 

b. 
A general discharge was a 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. 
When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. 

d. 
A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM) 


included a bad conduct or dishonorable discharge (punitive discharge) could submit a request for discharge in lieu of trial by court-martial. 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. A medical examination was required for separation under chapter 10, a mental status evaluation was not required. 
3. 
 Per Manual for Courts-Martial, Article 86, UCMJ –– Absence without leave, for being AWOL for more than 30 days, punishment included a punitive discharge. 

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. 


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. 


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