IN THE CASE OF: BOARD DATE: 14 October 2022 DOCKET NUMBER: AR20220004950 APPLICANT REQUESTS: in effect, an upgrade to his discharge from an under other than honorable conditions (UOTHC) discharge to something more favorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 feels that he was an honorable Solider the entire time of his service and that he never asked to leave Vietnam for any reason. He was sent home by request of the Red Cross due to his wife’s and her father’s health condition. 3. The applicant does not provide any supporting documentation for his request. 4. The applicant’s service record reflects the following documentation: a. DD Form 4 (Enlistment Contract) shows he enlisted in the Regular Army on 3 January 1969. b. DA Form 2476 (Application for Separation – Hardship or Dependency), shows he submitted a request for Compassionate Reassignment due to his wife’s nervous condition and his father’s health conditions. c. On 9 April 1969, his request was denied. It states, his request for compassionate reassignment was carefully and sympathetically reviewed by headquarters, but could not be favorably considered since his reason did not meet with the established criteria. To qualify, his immediate family problems, to which his request was based, should be temporary in nature and could be alleviated within a reasonable length of time, normally one year. d. Special Orders Number 262, dated 19 September 1969, shows he was awarded the Combat Infantryman Badge, which is not listed on his DD Form 214. e. DD Form 458 (Charge Sheet), dated 17 January 1973, shows he was pending court-martial charges for Article 86 (absent without leave (AWOL)) from on or about 12 October 1969 to on or about 14 January 1973. f. On 17 January 1973, the applicant requested to be discharged for the good of the service, under Army Regulation 635-200, Chapter 10 (Elimination from the Service). He received and acknowledged all of his rights. g. On 29 January 1973, his request was approved with the issuance of an Undesirable Discharge (UD) and to be reduced to the lowest enlisted grade prior to his discharge. h. DA Form 20 (Enlisted Qualification Record) shows he was AWOL on 12 October 1969 to 2 January 1971 and from 3 January 1971 to 13 January 1973, in which he was AWOL after his expiration term of service (ETS). i. DD Form 214 shows he received an UOTHC discharge on 31 January 1973, for the good of the service. He completed 10 months and 25 days of net service this period. This document also shows he had two period of lost time: 417 days before his ETS and 741 days after his ETS as a result of his AWOL. j. The applicant applied to the Army Discharge Review Board (ADRB) in which his request for an upgrade was denied. In a letter to the applicant, dated 4 May 1982, ADRB states, “The ADRB, after careful consideration of your military records and all other available evidence, has determined that you were properly discharged”. 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 liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was charged with commission of an offense (lengthy AWOL) punishable under the UCMJ with a punitive discharge. After being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial and carry an under other than honorable conditions characterization of service. The applicant provided no evidence of post- service achievements or letters of reference in support of 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 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 Army Board for Correction of Military Records (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 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 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 in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. Paragraph 1-9d stated 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. Paragraph 1-9e states 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. 3. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004950 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1