IN THE CASE OF: BOARD DATE: 6 October 2021 DOCKET NUMBER: AR20210010607 APPLICANT REQUESTS: The applicant requests an upgrade of his character of service from under other than honorable conditions to general or fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal 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 (USC), 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 he requested a hardship discharge because his mother was ill and he was denied. Instead he was given a 3-day pass. He went home and tried to find someone to take care of her. He could not; therefore, he stayed and went into an absent without leave (AWOL) status. 3. Additionally, he indicates in a personal statement that he took care of his mother until she died. He and a Caucasian Soldier requested a hardship discharge at the same time and his request was denied. He believes his request was denied because he is black. He is a pastor, he was ordained in 1988, and has been a model citizen since his discharge. He retired in 2016. But he is still active in the church. He is making this request because his son wants him to have a military funeral and he wants his son to receive the American Flag. Before he went AWOL, he was an excellent Soldier. He served in Vietnam and he served the military with his heart and soul until his mother got sick. 4. On 21 January 1968, the applicant enlisted in the Regular Army (RA) for 3 years. He held military occupational specialty 11C (Infantry Indirect Fire Crewman). The highest rank/grade he achieved was specialist four/E-4. On 9 July 1968, he was assigned to Vietnam and further assigned to 4th Division, 2nd Battalion, 8th Infantry Division, Vietnam, on 15 July 1968. 5. An Army Discharge Review Board (ADRB) Decisional Document, dated 14 February 1980, shows the applicant returned to the Continental United States on emergency leave due to the illness of his grandmother, on approximately 31 July 1968. But he did not return to Vietnam, he was reassigned to the “1st ACR,” Fort Knox, KY, where he served without incident until he left his unit in an AWOL status on 10 July 1969. 6. A Military Police Report shows, he was dropped from Army rolls on 11 August 1969. On 24 August 1969, he surrendered and was detained in the Alleghany County Prison, Pittsburg, PA, until he was released to military police and was transported to the Special Processing Detachment, Fort George G. Meade, MD. 7. Special Court-Martial Order Number 2523 shows charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ), for being AWOL from 10 July to 24 August 1969. He pled guilty, and on 9 September 1969, the court found him guilty. He was sentenced to reduction from pay grade E-4 to pay grade E-2, a forfeiture of $40 pay for 2 months, and 2 months of restriction. 8. A DA Form 20 (Enlisted Qualification Record) shows his conduct and efficiency were rated as: Conduct Efficiency From To Remarks Excellent Excellent 5 February 1968 30 May 1968 N/A Excellent Excellent 31 May 1968 29 April 1969 N/A Unknown Unknown 30 April 1969 10 August 1969 AWOL Unknown Unknown 11 August 1969 26 August 1969 “DFR” Unknown Unknown 27 August 1969 14 September 1969 “PCS” Unknown Unknown 15 September 1969 24 September 1969 AWOL Unknown Unknown 25 September 1969 N/A N/A 9. On 16 March 1970, he was charged with being AWOL from Fort George G. Meade from 23 September 1969 to 5 March 1970. 10. A Report of Medical Examination, dated 16 March 1970, shows he underwent a medical examination and was determined to be qualified for separation. 11. On 18 March 1970, following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He declined to submit statements in his own behalf. 12. On 20 March 1970, his immediate commander recommended approval of his request for discharge with an Undesirable Discharge Certificate. 13. On 30 March 1970, the separation authority directed the applicant’s reduction to private/E-1, approved his request for discharge for the good of the service under the provisions of chapter 10, AR 635-200, with an Undesirable Discharge Certificate. 14. Accordingly, on 30 March 1970, he was discharged. His DD Form 214 confirms he completed 1 year, 7 months, and 5 days of active service. His authorized awards are listed as the National Defense Service Medal, Viet Nam Campaign Medal, and Vietnam Service Medal. His DD Form 214 also shows in: * Reason and Authority, “Chapter 10, AR 635-200, SPN 246, For the Good of the Service” * Character of Service, “Under Conditions Other Than Honorable” * None Pay Periods Time Lost, 10 July 1969 through 24 August 1969 and 23 September 1969 through 10 March 1970 * Remarks, 215 days lost under Title 10 USC 972 and Vietnam Service from 9 July 1968 through 6 August 1968 15. On 18 July 1974 and 14 February 1980, the Army Discharge Review Board denied his petitions to upgrade his discharge, determining the evidence presented did not demonstrate the existence of a probable error or injustice and the overall merits of the case were insufficient as a basis for correction of his records. 16. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred, commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. a. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. b. An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service. However, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 17. AR 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The regulation provides that 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. 18. The applicant provided a personal statement in which he contends he requested a hardship discharge and he believes he was denied because he is black. He went home, tried to find someone to take care of her, but he could not, he stayed and he went into an AWOL status. Additionally, he stated that he took care of his mother until she died. He is a pastor, he was ordained in 1988, and he has been a model citizen since his discharge. He retired in 2016. But he is still active in the church. He is making this request because his son wants him to have a military funeral and he wants his son to receive the American Flag. Before he went AWOL, he was an excellent Soldier. He served in Vietnam and he served the military with his heart and soul until his mother got sick. 19. His request for a hardship discharge is not contained in the available record. He served in Vietnam from 9 July to 6 August 1968, he returned home on emergency leave and he did not return to Vietnam, he was reassigned to Fort Knox, KY. He went AWOL from Fort Knox from 10 July to 24 August 1969, until he returned to military control and was assigned to Fort George G, Meade. He was court-martialed for this offense. He left his unit at Fort Meade in an AWOL status from 23 September 1969 to 5 March 1970. He was charged with the AWOL offense and requested a discharge under chapter 10, AR 635-200. He completed 1 year, 7 months, and 5 days of active service. He also had 215 days of lost time. 20. In reaching its determination, the Board can consider the applicant’s petition, his Vietnam service, contentions, 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 determined that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published Department of Defense guidance for liberal consideration when reviewing discharge upgrade requests. The Board noted the multiple offenses leading to the applicant’s separation and the absence of evidence attesting to post-service achievements or letters of reference to weigh in support of a clemency determination. Based on the preponderance of the evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF :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. ADMINISTRATIVE NOTE(S): NA 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. 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 regulation provides that 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. 3. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. 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. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. c. 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. 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// ABCMR Record of Proceedings (cont) AR20210010607 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210010607 1 ABCMR Record of Proceedings (cont) AR20210010607 1