IN THE CASE OF: BOARD DATE: 13 October 2022 DOCKET NUMBER: AR20220002733 APPLICANT REQUESTS: reconsideration of his previous requests to have his under other than honorable conditions (UOTHC) discharge upgraded to a general, under honorable conditions 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 or Discharge) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in * Docket Number AR20160002195 on 10 August 2017 * Docket Number AR20200002295 on 20 October 2020 2. The applicant states he is a Vietnam Veteran that made some bad mistakes but being in Vietnam, he saw so many bad things and once he got home, he did not want to go back. Many of his fellow soldiers lost their lives and at that time he couldn't see why. all he wanted was to keep from going back over to Vietnam, so he went AWOL (absent without leave). 3. Review of the applicant’s service records shows: a. He was inducted into the Army of the United States on 23 August 1967. He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman). b. On 14 October 1967, while in training at Fort Gordon, GA, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 for dereliction of duty (not securing his weapon the Arms Room). c. On 10 January 1968, while in training at Fort Jackson, SC, he accepted nonjudicial punishment under the provisions of Article 15 for leaving his appointed place of duty without authority. d. He served in Vietnam from on or about 10 February 1968 to on or about 7 February 1969. e. On 19 March 1969, at Fort Bragg, NC, he accepted NJP under the provisions of Article 15 for being AWOL from on or about 16 March to on or about 18 March 1969. f. On 7 October 1969, court-martial charges were preferred against the applicant. His DD Form 458 (Charge Sheet) shows he was charged with * four specifications of AWOL, 19 June to 2 July 1969, 6 to 8 July 1969, 28 to 31 July 1969, and 12 to 20 September 1969 * one specification of escaping from lawful confinement in the stockade, on or about 7 August 1969 * one specification of stealing a 1969 Chevrolet Camaro, property of another Soldier g. A report of psychiatric evaluation, dated 13 November 1969, shows the applicant was found not having mental defects. He was mentally responsible to understand and participate in board proceedings. h. The applicant’s record is void of a separation packet (specifically his request for voluntary discharge and the separation authority’s approval memorandum) containing his separation processing documentation. However, his DD Form 214 shows he was discharged on 3 December 1969, under the provisions of Chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in lieu of trial by court- martial. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. His DD Form 214 shows: * he completed 2 years and 1 month of active service with multiple periods of lost time (over 140 days) * he was awarded or authorized National Defense Service Medal, Marksman Badge (M-14), Marksman badge (M-16), 2nd Class Gunner (M-60), Vietnam Service Medal, Vietnam Campaign Medal, Army Commendation Medal with V Device, overseas service bar i. On 22 February 1978, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. j. On 17 August 2017, the Board also reviewed his request for an upgrade of his discharge and denied it. The Board determined: (1) The evidence shows he accepted NJP on three occasions and was charged with being AWOL on at least four occasions, escaping from military confinement, and stealing a vehicle. These offenses are punishable under the UCMJ and could have resulted in a punitive discharge. Discharges under the provisions of AR 635-200, chapter 10, are voluntary requests for discharge from the Army to avoid trial by court- martial. (2) Although his discharge packet is not available for review, there is no evidence that indicates he was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or that his rights were not fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. k. On 20 October 2020, the Board reconsidered his request for an upgrade of his discharge and again denied it. After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief and amend the prior ABCMR decision as promulgated in Docket Number AR20160002195 on 10 August 2017. The Board applied Office of the Secretary of Defense standards for consideration of discharge upgrade requests and clemency to the complete evidentiary record, including the applicant’s statement. The Board considered the applicant's record of service, the frequency and nature of his misconduct and the reason for his separation. The Board found insufficient evidence of in-service mitigation and the applicant provided no evidence of post-service achievements or letters of reference to support a clemency determination. Based on a preponderance of evidence, the Board found that the applicant’s discharge characterization properly reflects the seriousness of his misconduct and determined there was no error or injustice. 4. By regulation, 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. A discharge under other than honorable conditions is normally considered appropriate. 5. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s 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 and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination. 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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 to amend the decisions of the ABCMR set forth in Docket Numbers AR20160002195 on 10 August 2017 and AR20200002295 on 20 October 2020. 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides 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. a. Paragraph 3-7a states 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 states 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. 2. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220002733 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1