ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  6 July 2021 DOCKET NUMBER:  AR20210007689 


APPLICANT REQUESTS:  The applicant requests upgrade his under other than honorable conditions (UOTHC) discharge to an honorable discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 293 (Application for the Review of Discharge)

.DD Form 214 (Armed Forces of the United States Report of Transfer orDischarge)

.4 character letters

.self-authored letter

.college transcripts

.high school diploma

.8 certificates of commitment/completion

.official student transcript

.Professional Locksmith Program Certificate



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10,U.S. Code, section 1552 (b); however, the Army Board for Correction of MilitaryRecords conducted a substantive review of this case and determined it is in the interestof justice to excuse the applicant's failure to timely file.

2.The applicant states, in effect he came to the United States when he was about toturn 19 years old.  Upon completion of training he was sent to the Republic of Vietnamwhere he served as a Machine Gunner on an armored truck to protect trailers onconvoys. He also performed guard duty on their perimeter to watch for the enemy.    Hewas discharged for no reason, the only mistake he made was associating with thewrong people.  He was young, dumb, and naïve and did not know what was going on.

a.He was not aware the individuals he was associating were being watched by theCriminal Investigation Division (CID), they thought he was working under cover for the CID.  All he did was play cards, go to the indoor pistol range, work towards getting his General Education Degree (GED), and staying safe. 
b.When the people were buried they told the authorities the applicant had no part inwhatever they were doing and there was no proof; for some unknown reason the first sergeant and chain of command did not believe them.  He never received disciplinary action and charges were not preferred against him and he did not know he could have requested council representation.  He received a bad discharge for no reason.  
3.The applicant provides the following documents for the Board's consideration:

a.Four character letters, which state:

(1)The applicant is a Department of Veteran Affairs (VA) employee, who theauthor has known for more than 30 years.  The applicant has always been a hardworking employee and an upstanding person.  He is always respectful to other veterans and employees.  He has always given the author the upmost attention in addressing his needs timely and through completion. 

(2)The author has known the applicant for over 20 years.  The applicant worksas a locksmith.  The applicant has the strong ability to be a team leader and his efficiency in completing projects without delays or additional cost is commendable and proven him to be an asset to the VA.  His good judgement and mature outlook ensures a logical and realistic approach to all his endeavors.  The author is glad to have the pleasure of knowing such a good hearted and loyal person. 

(3)The author has known the applicant for over 30 years.  The applicant hasalways been dependable, dedicated, trusting, and respectful to the employees and veterans at the VA.  The author considers is a pleasure to have the opportunity to know the applicant. 

(4)The author was the applicant's direct supervisor for fourteen months.  Theapplicant is a punctual, prepared, and present regarding his responsibilities.  He is entrusted with the highest level of security and access.  He is a dedicated and accountable employee, husband, and father. 

b.A self-authored letter, which states he is an employee at the VA, where he'sworked for 29 years.  He worked nursing and transportation as a transporter.  He also work in the preventative maintenance department, the engineering department, and as a government locksmith.   

(1)He received his high school diploma and had almost two years of college forcriminal justice.  He's received numerous awards for his work and dedication toward the veterans and employees.  He never had any disciplinary problems all these years.     

(2)He was writing the letter because he would like to have his discharge fromthe Army upgraded.  When he was 18 years old, he was stationed at Fort Knox, Kentucky.  From there he was sent to the Republic of Vietnam.   

(3)When they landed in Vietnam, he was given more shots and processedthrough and given a weapon and ammo and sent to his duty station in Vietnam. 

(4)He was an M60 machine gunner on a gun truck protecting tractor trailerconvoys and he also did a lot of guard duty, watching and guarding the perimeter keeping an eye out for the enemy.  It was very scary.   

(5)When he was at the compound, he hung out with other Soldiers who werealready in contract for six months to a year.  Some of them, it was their second tour.  They played cards, went to the indoor pistol range, and he was working on trying to get his GED.   

(6)At the time, he did not know that some of the Soldiers were being watched bythe CID for illegal activity.  In fact, some of the people kept asking him questions because they thought he was undercover.   

(7)He was naïve, young, and dumb and was only hanging out with thembecause hew as scared and thought if they were attacked, he would be safer being with people who had already served in warfare. 

(8)When the hammer came down on the Soldiers CID was after, they told CID,the commanding officer, and first sergeant the applicant had nothing to do with anything and CID could not find any proof or evidence, wo he was targeted, guilt by association.  He was shipped back to the United States and given a bad discharge.   

(9)He did not know he could have gotten a lawyer and fight the chargesbecause there were no charges.  To this day, he still does not know what was put in his records to justify giving him a bad discharge. 

(10)He was fixing a lock for a VA Counselor who asked him if he was a veteran,to which he said yes.  The applicant told him he had high blood pressure, diabetes, and problems with his colon.  The counselor asked him if he had been in Vietnam, to which he answered yes and then told the counselor his story.  The counselor told him he should try to get his discharge upgraded.   

(11)He also learned in life and from his 30 years of martial arts training it doesnot matter how many times you fall; what matters is how many times you get up.  You never count the days; you make the days' count.   

c.His high school transcript, with a graduation date of 9 April 2010 with a copy ofhis GED diploma. 

d.Certificates of Completion/Commitment as follows:

.Certificate of Completion for Pest Control Quality Assurance EvaluatorTraining, on 24 November 2000

.Certificate of Completion for Pest Control QA Evaluation, on 24 November2000

.Certificate of Completion for Basic Pest Management, on 20 April 2001

.Certificate of Completion for Industrial Safety and Health, on 10 August 2001

.Certificate of Completion for Fire Protection, on 30 November 2001

.Certificate of Completion for Chemical Hazards, on 25 January 2002

.Certificate of Completion for the Safety and Health for Hazardous WasteSites, on 19 June 2002

.Certificate of Commitment for participating in a Patient Centered Care StaffEngagement Session, on 12 May 2016



e.A professional Career Development Institute Official Student Transcript, whichshows the applicant graduated on 19 December 1997 and his diploma as a Locksmith.   

4.On 30 March 1971, the applicant joined the Army, at the age of 17 years old for aperiod of 3 years.  There was no indication his parent signed the parental consentwaiver.  He was assigned to Fort Dix, New Jersey, for basic combat training (BCT) andhe attended Advanced Individual Training (AIT) at Fort Lee, Virginia.  On 8 October1971, he was assigned to Fort Knox, Kentucky and on 28 March 1972, he served in theRepublic of Vietnam until 14 August 1972, a period of 5 months.

5.He accepted nonjudicial punishment (NJP) on:

a.3 August 1971, for failing to go to his appointed place of duty on or about 22, 23,26, 27 28, 29, and 30 July 1971.  His punishment included forfeiture of $71.00 per month for two months and reduction to the grade of Private/E1 (PVT).  He did not appeal the punishment. 

b.7 September 1971, for stealing two packs of cigarettes and for indebtedness.  Hispunishment included forfeiture of $71.00 for two month and restriction and extra duty for 45 days.  He did not appeal his punishment. 

c.2 February 1972, for being drunk and disorderly and willful damage to the unitpool table.  His punishment included reduction to the grade of PVT, forfeiture of $80.00, and restriction and extra duty for 14 days.  He did not appeal his punishment.  

d.16 April 1972, for failing to go to his appointed place of duty.  His punishmentincluded forfeiture of $40.00 for one month.  He did not appeal his punishment. 

e.13 June 1972, for unlawfully having a concealed weapon on his person and forfailing to go to his appointed place of duty.  His punishment included forfeiture of $60.00 for one month and seven days' extra duty.  He did not appeal his punishment. 

f.16 June 1972, for failing to go to his appoint place of duty on two occasions.  Hispunishment included forfeiture of $60.00 for one month.  He did not indicate whether he wanted to appeal his punishment or not.   

g.18 June 1972, for failing to go to his appointed place of duty on two occasions.His punishment included forfeiture of $60.00 for one month.  He did not appeal his punishment.   

h.21 June 1972, for failing to go to his appointed place of duty on two occasions.His punishment included forfeiture of $25.00 for one month.  He did not appeal his punishment.   

6.On 18 July 1972, court-martial charges were preferred against the applicant forfailing to obey a lawful order of his noncommissioned officer on three occasions.  Thecharges were forwarded to the convening authority, on 21 July 1972.

7.On 25 July 1972, the applicant voluntarily requested discharge for the good of theservice under the provisions of Army Regulation 635-200 (Personnel Separations –Enlisted Personnel), chapter 10.  He consulted with legal counsel and was advised ofthe basis for the trial by court-martial, his available rights and the basis for voluntarilyrequesting discharge under the provision of Army Regulation 635-200, chapter 10, andhe elected to submit a statement on his own behalf, which states the applicant made astatement, which says he knew he had been in some trouble.  He asked the conveningauthority to consider the fact he had tried the best he could to stay out of trouble and todo his work to the upmost of his ability and to protect the lives that were in his handswhile he was working on the gun truck.  He was proud to be in the Army and to be apart of the Army.  He was asking for the convening authority to try and see if he couldget a general discharge because then he would be able to finish school and find a goodjob and support his wife and child.  He hoped the convening authority understood whathe asked for and that he though about it letting him receive a general discharge.

9.On 26 July 1972, the applicant underwent a Mental Health evaluation, which foundthe applicant had the mental capacity to understand and participate in his separation.

10.His chain of command recommended approval of the chapter 10 and on 31 July1972, the appropriate separation authority approved the applicant's request directing hebe issued an Undesirable Discharge Certificate.

11.On 4 September 1972, the applicant was discharged accordingly.  He hadcompleted 1 year, 5 months, and 5 days of active service.  He had been in the Republicof Vietnam for 4 years and 17 days.  He was awarded or authorized the:

.Marksman Marksmanship Badge M16

.Grenade (1st Class)

.National Defense Service Medal

.Vietnam Service Medal with on Bronze Service Star



12.On 19 November 1973, the applicant received a letter from the Army DischargeReview Board (ADRB), which states after careful consideration of his military recordsand all other available evidence, they determined the applicant had been properlydischarged.

13.On 6 February 1976, the applicant joined the US Army Reserve (USAR) DelayedEntry Program (DEP) for a period of 6 years.  On 10 February 1976, he was dischargedfrom the USAR DEP and reentered active duty for a period of 3 years.

14.On 15 July 1976, the applicant accepted NJP for wrongful possession of 3 grams ofmarijuana.  His punishment included reduction to the grade of PVT, forfeiture of $168for two months, and extra duty and restriction for 45 days.  He did not appeal hispunishment.

15.The applicant received three Records of Informal Counseling on:

a.17 August 1976 for having a bad attitude and failing to respond to orders as wellas his constant missing of formations.  The applicant signed the form, but did not have a response.   

b.19 August 1976 for being late to his duty assignment.  He was late a number oftimes and always had poor excuses for his tardiness.  He was told not to be late in the future.  The applicant signed the form, but did not have a response.   

c.18 October 1976, on ensuring he did not miss any additional clean-up details.Without his help, other Soldiers had to do more work.  The applicant agreed to the counseling and told the counselor he would not miss any more or at less not if possible. 

16.On 26 August 1976, his company commander wrote a memorandum regarding aformal counseling of the applicant, on 25 August 1976.  It states, the applicant wascounseled on his poor attitude and duty performance.  Throughout the counseling, theapplicant was brief on the standards of behavior and duty performance expected of him.Prior to the conclusion of the session, personal affairs and problems were discussedwhich could have affected the applicant's job performance.  The applicant's reaction tothe counseling seemed favorable.

17.On 26 October 1976, the applicant's commander initiated action to discharge himunder the provisions of Army Regulation 635-200, paragraph 5-37 ExpeditiousDischarge Program because he had not responded to counseling by members of hischain of command.  He was listless, apathetic, and totally unconcerned about his unitand job.  The commander was recommending he received an under honorableconditions (general) discharge.

18.The applicant acknowledged notification of the initiation of separation andvoluntarily consented to the discharge.  Statements on his own behalf were notsubmitted.  He understood the prejudices in life he may encounter by receiving an underhonorable conditions (general) discharge and he had been provided the opportunity toconsult with consulting counsel.

19.The applicant's chain of command recommended approval of the discharge and on19 November 1976, the appropriate approval authority directed the applicant bedischarged from the Army with an under honorable conditions (general) discharge.

20.On 6 December 1976, the applicant was discharged accordingly.  He had 9 monthsand 27 days of active service that period.  He was awarded or authorized the MarksmanMarksmanship Badge M16.

21.On 18 December 1980, a memorandum subject:  Determination of Acceptability -Prior Service Expeditious Discharge, which shows a waiver for the applicant to reenlistwas recommended for approval with a 4 year enlistment period.

22.The applicant requests an upgrade of his under other than honorable conditionsdischarge stating he was discharged for no reason and given a bad discharge.  He wasyoung at the time of his service and naïve.  He was sent to the Republic of Vietnam andstarted hanging out with the wrong crowd.  There was no evidence against him for hisdischarge.  He didn't know he was able to consult with counsel and fight the discharge.

a.His record shows, he enlisted in the Army at the age of 17, he accepted eightNJPs, and court-martial charges were preferred against him for failing to obey a noncommissioned officer on three occasions.  He requested discharge, after consulting 
with counsel, in lieu of court-martial and was discharged under the provisions of Army Regulation 635-200, Chapter 10.  He received an under other than honorable conditions discharge. 

b.During his second enlistment, he accepted one NJP, was informally counseledon three occasions and formally counseled on one occasion.  His commander initiated separation for expedited discharge, and after consulting with counsel, the applicant voluntarily accepted the separation.    

c.Army Regulation 635-200 states a Chapter 10 is a voluntary discharge requestin-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 (UCMJ) 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. 

d.There is no evidence in the applicant's service record that he received a medicalevaluation prior to his separation or that he waived his right to receive one. 

e.According to the Manual for Courts-Martial, disobeying a lawful order from anoncommissioned officer, included the punishment of a bad-conduct or dishonorable discharge.   

f.Army Regulation 635-200, paragraph 5-27 states personnel whose performanceof duty, acceptability for the Service, and potential for continued effective service fall below the standards required for enlisted personnel in the US Army may be discharged. 

g.The ABCMR does not grant requests for upgrade of discharges solely for thepurpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency.   

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.  The applicant provided evidence of post-service achievements and letters of support to weigh a clemency determination.  However, 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. 

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 

:XX :XX :XX 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, U.S. Code, section 1552(b), provides that applications for correction ofmilitary records must be filed within 3 years after discovery of the alleged error orinjustice.  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 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.  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.  
 
 d.   Paragraph 5-27 states personnel whose performance of duty, acceptability for the Service, and potential for continued effective service fall below the standards required for enlisted personnel in the US Army may be discharged.   
 
3.  Per Manual for Courts-Martial, disobeying a noncommissioned officer 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. 
 
//NOTHING FOLLOWS//