ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:    BOARD DATE: 22 February 2022 DOCKET NUMBER: AR20210013618 
APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to general under honorable conditions. 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. 
DD Form 293 (Application for the Army Discharge Review Board) 

. 
Two letters of support 


FACTS: 
1. 
The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 understands going absent without leave (AWOL) was wrong, but he feels that, following his discharge, he contributed to society; he now needs this upgrade to become eligible for housing and other Department of Veterans Affairs (VA) benefits. The applicant includes two letters of support, which laud the applicant's selflessness and willingness to help others. 

3. 
The applicant's service records show: 


a. 
After obtaining his parents' permission, the applicant enlisted into the Regular Army for 3 years; he was 17 years old. Upon completion of initial entry and airborne training and the award of military occupational specialty (MOS) 76Y (Unit Supply Specialist and Armorer), orders immediately transferred him to the 3rd Battalion (Airborne), 503rd Infantry Regiment in Vietnam; the applicant arrived at his unit, on 10 March 1971. 

b. 
Special Orders, issued by the 173rd Airborne Brigade and date 22 July 1971, promoted the applicant to specialist four (SP4)/E-4 in primary MOS 11B (Light Weapons 


Infantryman), effective 22 July 1971. Letter Orders, dated 25 July 1971, directed the applicant's battalion (and the applicant) to move from Vietnam to Fort Campbell, KY; the unit's reporting date was 28 July 1971. 
c. 
On 10 December 1971, the applicant's company commander prepared a memorandum for the Commanding General, 173rd Airborne Brigade, in which he recommended barring the applicant from reenlistment. The commander stated the applicant had departed the unit in an AWOL status, on 26 November 1971, and effective 25 December 1971, the unit declared him a deserter. The applicant's leadership counseled had the applicant numerous times about personal problems, but the applicant indicated he did not want to discuss his situation with anyone in the command. The commander opined the applicant's personal problems were the cause of the applicant's unauthorized departure. 

d. 
On 15 February 1972, contrary to the applicant's plea, a special court-martial found the applicant guilty of AWOL from 26 November 1971 until 12 January 1972 (47 days). The court sentenced him to 2 months' confinement, forfeiture of $190 per month for 2 months, and reduction to private (PV1)/E-1. On 24 February 1972, the applicant arrived at the U.S. Army Correctional Training Facility, located on Fort Riley, KS, to complete his confinement. On 24 March 1972, the special court-martial convening authority approved the applicant's sentence and ordered its execution. 

e. 
U.S. Army Correctional Training Facility orders, dated 20 March 1972, directed the applicant's reassignment from Fort Riley to Fort Knox, KY, and he arrived at his new unit (an advanced individual training (AIT) unit), on 11 April 1972. Special Court-Martial Orders, dated 26 March 1972 and issued by the U.S. Army Correctional Training Facility, remitted the unexecuted portion of the applicant's court-martial sentence. Effective 1 June 1972, the applicant's leadership promoted him to private first class (PFC)/E-3. 

f. 
On 6 July 1972, the applicant's Fort Knox unit reported him as AWOL and dropped him from unit rolls, on 4 August 1972. On 8 August 1972, the applicant commander prepared a Commanding Officer's Inquiry regarding the applicant AWOL status. The commander stated, on 16 June 1972, the applicant had left the unit for a 16-day leave; on 2 July 1972, he asked for a 4-day extension but failed to return. As of 6 July 1972, the unit considered the applicant AWOL; the commander added the applicant had said he was planning to get married while on leave, and he had arranged for off-post housing before he left. 

g. 
On 3 November 1972, the Federal Bureau of Investigation (FBI) issued a letter notifying the Army it had arrested the applicant and confined him in a civilian jail. 


Effective 7 November 1972, orders showed the applicant had returned to his Fort Knox unit. 
h. The applicant's separation packet is unavailable for review. However, the applicant's service records do include rank reduction and separation orders, and his DD Form 214. These documents reflect that, on 30 January 1973, the applicant was discharged under other than honorable conditions, per chapter 10 (Discharge for the Good of the Service), AR 635-200 (Personnel Separations – Enlisted Personnel). The applicant's DD Form 214 also shows he completed 1 year, 8 months, and 10 days of his 3-year reenlistment contract, with two periods of lost-time totaling 292 days. Further, the DD Form 214 lists the following awards: 
. 
Parachutist Badge 

. 
Vietnam Service Medal with two bronze service stars 

. 
Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) 


4. The applicant requests the upgrade of his character of service; he acknowledges going AWOL was wrong, but, in effect, he believes his subsequent contributions to society mitigate his misconduct; he now needs this upgrade to become eligible for housing and other VA benefits. 
a. 
Because the applicant's separation packet is unavailable for review, we are unable to determine the exact circumstance(s) that led to his discharge. However, in view of the fact his service record contains his DD Form 214, showing both the reason and authority for his separation, the Board presumes the applicant's leadership properly completed his discharge action. While current regulatory guidance requires the permanent filing of separation documents in a Soldier's official military personnel file, that requirement did not exist in the version of the military personnel records regulation then in effect. 

b. 
During the applicant's era of service, Soldiers charged with UCMJ violations, for which a punitive discharge was an authorized maximum punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and available in-lieu of trial by court-martial. The Manual for Courts-Martial (MCM), in effect at the time, stated a punitive discharge was one of the authorized punishments for violations of Article 86 (Absence without Leave for more than 30 Days). 

c. 
In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 


BOARD DISCUSSION: 
After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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, the applicant's record of service, the frequency and nature of the applicant's misconduct, his arrest, his request for discharge and the reason for separation. The Board found insufficient evidence of in-service mitigating factors and the applicant did not find sufficient evidence of post-service achievements or letters of reference to support a clemency determination. After reviewing the application and all supporting documents, based on a preponderance of evidence, the Board found that his discharge 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 
XX: XX: XX: DENY APPLICATION 
BOARD DETERMINATION/RECOMMENDATION: 
Except for the correction addressed in Administrative Note(s) below, the Board found 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. 

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): 
1. 
AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized. 

2. 
Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows: 


a. 
Department of the Army General Order (DAGO) Number 5, dated 1973, awarded the Republic of Vietnam Civil Actions Honor Medal, First Class to the 3rd Battalion, 503rd Infantry Regiment (Airborne). 

b. 
DAGO Number 8, dated 1974 awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation to all units that served in Vietnam. 


3. Based on the foregoing, amend the applicant's DD Form 214, ending 30 January 1973, by adding the Republic of Vietnam Civil Actions Honor Medal, First Class and Republic of Vietnam Gallantry Cross with Palm Unit Citation. 
REFERENCES: 
1. 
Title 10, USC, 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 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. 
AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. 


a. 
Paragraph 1-9e (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. 

b. 
Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Once approved, an undesirable discharge was normally furnished, but the discharge authority could direct either an honorable or a general discharge, if warranted. 


3. 
The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed a punitive discharge was an available maximum punishment for violations of Article 86 (AWOL for more than 30 days). 

4. 
AR 600-200 (Enlisted Personnel Management System), in effect at the time, stated in paragraph 7-26b (3) (Reduction Authority and Reasons – Approved for Discharge from Service with an Undesirable Discharge) that Soldiers approved for administrative separation with an undesirable discharge under other than honorable conditions were to be reduced to private/E-1 prior to discharge. 

5. 
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 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. 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. 

6. 
AR 15-185 (ABCMR), paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which means, barring evidence to the contrary, the Board presumes what the Army did was correct. 


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