IN THE CASE OF:  
BOARD DATE:  21 June 2023 
DOCKET NUMBER:  AR20220011107 


APPLICANT REQUESTS:  Reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) discharge, to an under honorable conditions (general) discharge.  

APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD:  

DD Form 293 (Application for the Review of Discharge) 

FACTS:   

1.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the Army Board for Correction ofMilitary Records (ABCMR) in Dockets Number AC90-07531 on 19 September 1990 andAR20150003357 on 6 October 2015, respectively.

2.As new argument, the applicant states he served in Vietnam, did his job, and waslucky to make it home alive. While home on leave some guys were talking trash aboutVietnam. He did not like what they were saying, he got mad and can’t remember whathe did, but was put in jail. While in jail he was reported absent without leave (AWOL),and believes this AWOL is why he received an UOTHC discharge.

3.On 16 May 1968, the applicant was enlisted in the Army of the United States for a3year period. Upon completion of his initial entry training, he was assigned to Germanyand arrived on 15 September 1968. On 17 January 1969, the applicant was honorablydischarged for immediate enlistment into the Regular Army.

4.On 18 January 1969, the applicant enlisted in the Regular Army, for a 3 year serviceobligation. He departed Germany on 20 February 1969 and reported to Vietnam on3 April 1969. On 21 March 1970, he departed Vietnam and reported to Fort Riley, KS inApril 1970.

5.On 28 August 1970, before a special court-martial at Fort Polk, LA, the applicant wasfound guilty of three specifications of being AWOL from on or about 4 June 1970through 19 June 1970; on or about 23 June 1970 through 30 June 1970; and on orabout 1 July 1970 through 11 July 1970. His sentence included confinement at hard labor for 99 days and reduction to Private/E-1.  

6.On 2 September 1970, only so much of his sentence was approved and ordered dulyexecuted as extending to the reduction to the grade of E-3, the confinement at hardlabor for 99 days was suspended for 90 days.

7.On 21 January 1972 and 23 February 1972, in the 4th District Court of Rusk County,TX, the applicant was convicted of aggravated assault and destruction of property. Hissentence consisted of four years confinement and one year of probation.

8.On 12 April 1972, the applicant’s commander notified the applicant of his intent toinitiate actions to separate him prior to his normal expiration term of service, under theprovisions Army Regulation 635-206 (Discharge – Misconduct (Fraudulent Entry,Conviction by Civil Court, and Absence Without Leave or Desertion)), based on hisconviction by a civilian court. He was advised of his rights, the effects of waiving thoserights, and he elected not to submit a statement in his own behalf.

9.On 20 April 1972, the applicant consulted with legal counsel and acknowledgedreceipt of the commander’s proposed separation memorandum. Additionally, he statedhe had been advised by counsel and acknowledged his understanding that he could bedischarged under the provisions of Army Regulation 635-206, based on his convictionby a civilian court, and potentially would not be awarded an honorable discharge. Hestated he did not intend to appeal his conviction and waived his rights.

10.On 27 April 1972, the applicant's commander formerly recommended his separationfrom service, under the provisions of Army Regulation 635-206, based on his convictionby a civil court. On 28 April 1972, his intermediate commander endorsed therecommendation.

11.On 12 May 1972, the separation authority approved his separation and directed theapplicant's discharge, under the provisions of Army Regulation 635-206. He alsodirected the applicant's reduction to the lowest enlisted grade and the issuance of a
DD Form 258A (Undesirable Discharge Certificate).

12.On 9 June 1972, the applicant was discharged under the provisions of ArmyRegulation 635-206. His DD Form 214 (Armed Forces of the United States Report ofTransfer or Discharge) confirms he was discharged in the lowest enlisted grade and hisservice was characterized as UOTHC. He was credited with completing 7 months and13 days of net active service this period, he had 8 months and 2 days of other servicecredit. He was awarded or authorized the: Vietnam Service Medal w/2 Bronze ServiceStars, Republic of Vietnam Campaign Medal w/device, Presidential Unit Citation,Meritorious Unit Citation, Combat Infantryman Badge, and Vietnam Gallantry Cross.
13.On 19 September 1990, the ABCMR considered the applicants petition for upgradeof his discharge. The Board determined after careful consideration of his militaryrecords and all other available evidence, that he was properly discharged, and deniedhis request.

14.On 6 October 2015, the ABCMR reconsidered the applicants petition for anupgrade of his discharge. The Board determined after careful consideration of hismilitary records and all other available evidence, that he was properly discharged, andagain denied his request for relief.

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


BOARD DISCUSSION:  

1.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that relief was not warranted. The Boardcarefully considered the applicant's record of service, documents submitted in supportof the petition and executed a comprehensive and standard review based on law, policyand regulation, and published Department of Defense guidance for liberal and clemencydeterminations requests for upgrade of his characterization of service.  Upon review ofthe applicant’s petition and available military records, the Board noted the applicantprovided no post service achievements or character letters of support that could attestto his honorable conduct that might have mitigated the character of service received atdischarge. The Board determined based on the applicant misconduct of AWOL on 3separate occasion and his civil conviction there is insufficient evidence of in-servicemitigating factors for the serious misconduct to weigh a clemency determination.

2.The Board determined the applicant’s service record exhibits numerous instances ofmisconduct during his second enlistment period for 7 months and 13 days of net activeservice this period, along with 8 months and 2 days of other service credit. Under liberalconsideration, the Board recognized his Vietnam service and awards received for hishonorable actions in combat. However, the Board determined the applicant has notdemonstrated by a preponderance of evidence an error or injustice warranting therequested relief, specifically an upgrade of the under other than honorable conditions(UOTHC) discharge to a general discharge.  Therefore, the Board denied relief.



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 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 to amend the decision of the ABCMR set forth in Docket Number AC90-07531 on 19 September 1990 and AR20150003357 on 6 October 2015. 



Microsoft Office Signature Line...
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), in effect atthat time, set forth the basic authority for the separation of enlisted personnel.

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.  
 
2.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). That regulation provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or when action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice (UCMJ) was death or confinement in excess of one year. An undesirable discharge was normally considered appropriate.  
 
3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NR) 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.  
 
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