IN THE CASE OF: BOARD DATE: 12 July 2023 DOCKET NUMBER: AR20220011457 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) discharge and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 23 November 1970 * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 22 February 2022 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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, in effect: a. He enlisted to serve in Vietnam in 1967. The probability of dying scared him, but he wanted to fight and defend his country. He was proud and dedicated to his unit. The unit received orders to go to Vietnam in 1968, but they went to Korea instead. He served with the unit police. He spent four out of the eight months he was there on the demilitarized zone. b. He returned from duty one night and found his bunk area desecrated. His bed was outside. There were racial slurs painted on his wall locker and on a photograph of his mother, and someone had smeared human feces on all of his belongings. He had never experienced prejudice and that level of hatred before. He had no alternative but to place three rounds of live ammunition in his M-14 and point it at the group of white boys, who were laughing at what they had just done, down at the other end of the barracks. He fired off one round in their direction, cleared his weapon, and sat down on the floor to wait for the Military Police. c. While he was in the stockade, he was given water, lettuce, and occasionally a cup of rice until he was released with a bus ticket home to. He wonders how a young man is supposed to act after willingly volunteering to serve his country, experiencing that kind of hatred, and receiving more non-judicial punishments than God knows of. d. Since his experience in the Army, he has been in at least 26 mental facilities to cope with depression and has attempted to take his own life. He has had two failed marriages and lost jobs, family and friends. His father’s confidence in him depleted rapidly. He promised his father he would not stop fighting for what is rightfully his, an honorable discharge. Additionally, he would like to apply for VA benefits. 3. The applicant enlisted in the Regular Army on 15 September 1967 for a 3-year period. The highest rank he attained was private first class/E-3. 4. The applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniformed Code of Military Justice on the following dates: * 12 January 1968, for absenting himself from his unit (AWOL) on or about 11 December 1967 until on or about 3 January 1968 * 22 April 1968, for wrongfully appearing in a fatigue uniform on 17 April 1968; his punishment included reduction to in rank to private/E-1 * 26 May 1968, for dereliction of duty on 21 May 1968 and 22 May 1968, and breaking restriction on 23 May 1968 * 13 August 1968, for being AWOL on or about 12 August 1968 until on or about 13 August 1968; his punishment included reduction to E-1 * 30 October 1968, for being AWOL on or about 28 October 1968; his punishment included reduction to private/E-2 * 3 April 1969, for being AWOL on or about 9 March 1969 until on or about 28 March 1969 * 1 June 1969, for being AWOL on or about 2 June 1969 until on or about 3 June 1969, and for dereliction of duty on 7 June 1969 * 2 July 1969, for speeding and driving without an operator’s license on 17 June 1969 * 24 September 1969, for disobeying a lawful order on 18 September 1969, and two occasions of disobeying a lawful order on 19 September 1969; his punishment included reduction to E-1, forfeiture of pay, extra duty and restriction * 29 September 1969, for disobeying a lawful order on 28 September 1969 * 8 October 1969, for absenting himself from his appointed place of duty on or about 5 October 1969 * 2 February 1970, for being AWOL on or about 2 February 1970 * 1 May 1970, for being AWOL on or about 30 April 1970 until on or about 1 May 1970, and for dereliction of duty on 1 May 1970; his punishment included reduction to E-2, restriction, and extra duty for 14 days * 28 August 1970, for being AWOL on or about 2 August 1970 until on or about 4 August 1970, and for AWOL from 9 August 1970 until 12 August 1970 5. Court-martial charges were preferred against the applicant on 24 September 1970, for violations of the Uniform Code of Military Justice. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL, on or about 2 August 1970 until on or about 3 August 1970, showing disrespect in language to a noncommissioned officer, disobeying a lawful order, and communicating a threat to take a noncommissioned officer’s life on or about 3 September 1970. 6. The applicant consulted with legal counsel on 15 October 1970. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his behalf. He elected not to submit a statement. 7. The applicant's immediate and intermediate commanders recommended approval of his request for discharge in lieu of court-martial and further recommended the issuance of a DD Form 258A (Undesirable Discharge Certificate). 8. The separation authority approved the applicant's request for discharge on 18 November 1970, and directed the applicant's reduction to the lowest enlisted grade and the issuance of an Undesirable Discharge Certificate. 9. Accordingly, the applicant was discharged on 23 November 1970, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial. His DD Form 214 shows his service was characterized as UOTHC. He was credited with 2 years, 9 months, and 1 day of net active service with 50 days of lost time and foreign service in the U.S. Army Pacific [Republic of Korea] for 11 months and 26 days. 10. Administrative separations under the provisions of Army Regulation 635-200, Chapter 10 are voluntary requests for discharge for the good of the service, in lieu of a trial by court-martial. An UOTHC character of service is normally considered appropriate. 11. The Army Discharge Review Board reviewed the applicant's discharge on 12 June 1972 and determined he was properly and equitably discharged. His request for a change in the character of his discharge was denied. 12. The Board should consider the applicant's statement and provided evidence in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition and available military records, the Board determined there is insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The applicant provided no post service achievements or character letters of support to attest to the honorable conduct. The Board noted during the applicant’s enlistment period he had numerous periods of AWOL and serious misconduct. 2. Additionally, the Board considered the applicant’s self-authored statement regarding the racial injustices during his assignment in Korea, but found the applicant provided no supporting documentation to substantiate his claims. However, the Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge. Therefore, relief was denied. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 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. REFERENCES: 1. Title 10, U.S. Code, 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. Army Regulation 15-185 (ABCMR), paragraph 2-11 states applicants do not have the right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, 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. b. 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. 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. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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// ABCMR Record of Proceedings (cont) AR20220011457 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1