IN THE CASE OF: BOARD DATE: 21 November 2022 DOCKET NUMBER: AR20220004595 APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record) . DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) . Army Discharge Review Board (ADRB) Case Report with associated documents . National Personnel Records Center (NPRC) reply letter . 130 pages of service medical documents . Veterans Administration Form 21-10210 (Lay/Witness Statement) FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Record (ABCMR) in Docket Number AR20150006156, on 2 February 2016. Wherein, the Board determined the evidence did not demonstrate the existence of a probable error or injustice. 2. As a new argument, the applicant states: a. While stationed in Vietnam in 1969, he started spitting blood and he went to the dispensary to see what was going on. While there, the military doctor stuck a tube down his throat and stated that he had something wrong with his right lung and it had to be removed. He stayed in Vietnam for 6 months, and then he was evacuated to Japan. The doctors ran the same test as when he was in Vietnam and stated the same thing. After he left Japan, he was sent to Valley Forge in Pennsylvania and the doctors took x-rays and ran a tube down his throat to get fluid out of his stomach. The doctors stated that they couldn't find anything wrong with him, but he was still having issues with his lung, and he was sent back to duty at Ft Hood, Texas. b. While at Ft. Hood, he was still having issues with his lung and went to the dispensary on post. The doctors on post stated that they could not find anything wrong. He was still having issues with his lung, so he decided to take it upon himself to seek civilian care to take care of his medical issues. He went to and the civilian doctors stated that they could not find anything. The Army did not listen to him, so he took matters in his own hands. The Army considered him absent without leave (AWOL) the first time because he decided to seek medical care that the Army refused to give him. During this time, he was still having issues with his lung. 3. The applicant enlisted in the Regular Army on 7 June 1968, for 3 years. He was awarded military occupational specialty 11B (Light Weapons Infantryman). The highest grade he attained was E-3. 4. On 11 February 1970, before a special court-martial at Fort Hood, Texas, the applicant was found guilty of being AWOL from on or about 29 September 1969 through on or about 7 January 1970. His sentenced included reduction to the grade of private/E­1 and forfeiture of $40.00 per month for 5 months. 5. The applicant’s DA Form 20 (Enlisted Qualification Record) item 44 (Time Lost) indicates he was also AWOL from on or about 6 April 1970 through on or about 28 August 1970. 6. The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, his DD Form 214 shows he was discharged on 13 November 1970, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, with separation program number 246 [Discharge for the Good of the Service]. He was credited with completing 2 years and 13 days of net active service this period with two periods of lost time. His service was characterized as UOTHC. He was awarded or authorized the parachutist badge and the expert marksmanship qualification badge (M-16). 7. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his service characterization on two occasions. The ADRB considered his requests and determined he was properly discharged, and denied his request for relief on 14 December 1975 and 3 July 1980. 8. An advisory opinion from the Office of the Surgeon General (OTSG), dated 5 January 2016, states upon thorough review of the record, it was determined that the applicant received a thorough evaluation while in Japan and at the Valley Forge Hospital. He was not considered for extensive surgery by either facility. Medical care should not be considered a contributing factor for his actions. 9. The applicant was provided a copy of the advisory opinion on 7 January 2016 and was afforded the opportunity to responds; however, he did not reply. 10. The applicant provides 130 pages of service medical documents and a lay/witness statement, dated 21 December 2022, which reiterates his medical issues and the reason why he went AWOL. He further states, after he was separated a civilian doctor found a hole in his right lung. He still has issues with his lung and sees a provider for pain management. 11. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. In doing so, he would have waived his opportunity to appear before a court-martial and risk a felony conviction. A characterization of UOTHC is authorized and normally considered appropriate; 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. 12. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 13. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was 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, his record of service, the frequency and nature of his misconduct, an advisory opinion, the reason for his separation and whether to apply clemency. One possible outcome was to deny the applicant’s request based upon the OTSG advisory opinion. However, the Board determined that they did not agree with the advisory opinion in that the applicant provided substantiating evidence to support his claim. The Board found sufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. Based upon a preponderance of the evidence, and notwithstanding the recommendation of the advisory official, the Board found that relief was warranted based upon guidance for consideration of discharge upgrade requests. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20150006156 on 2 February 2016. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant’s DD Form 214 for the period ending 13 November 1970 showing his character of service as under honorable conditions (General). 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 15-185 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. It is not an investigative body. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. 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. 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. c. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge UOTHC was normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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//