IN THE CASE OF: BOARD DATE: 28 March 2023 DOCKET NUMBER: AR20220005059 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions (UOTHC) discharge and a personal appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Forms 149 (Application for Correction of Military Record), 1 February 2022 and 8 May 2022 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), ending on 26 January 1967 * DD Form 214 (Report of Separation from Active Duty), ending 18 May 1976 * Privacy Act Release Authorizations, 1 April 2020 and 1 July 2022 * National Personnel Records Center (NPRC), request for record response, 19 May 2022 * Department of Veterans Affairs (VA) benefits claims response letter, 23 June 2022 * VA Form 21-4138 (Statement in Support of Claim), undated with a photograph said to be in Vietnam in 1968 * Multiple Congressional Liaison Inquiry Letters and an email * Multiple Army Review Boards Agency, Congressional Liaison and Inquiries, response letters 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, he believes his discharge is in error because his record was destroyed in the St Louis, MO, fire. He needs his discharge upgraded for VA benefits and contends he served in Vietnam. 3. A fire destroyed approximately 18 million service members' records at the NPRC, St. Louis, MO, in 1973. However, the applicant's service records were not affected in that fire and this case is being considered using the documents provided by the NPRC. 4. The applicant's service record shows: a. On 4 January 1966, the applicant enlisted in the Regular Army for a 4-year service obligation. Upon completion of training and award of military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman), he was assigned to Germany and arrived on 25 May 1966. b. On 6 October 1966, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being disrespectful in language towards his superior noncommissioned officer at Augsburg, Germany, on or about 28 September 1966. His punishment included reduction to E-2 (suspended for 30 days). c. On 26 January 1967, he was honorably discharged for immediate reenlistment. He was issued a DD Form 214 for this period of service that credited him with 1 year and 23 days of net active service. It shows he was awarded or authorized the National Defense Service Medal and a marksmanship badge. d. On 27 January 1967, he reenlisted for a 3-year service commitment in the rank/grade of private first class (PFC)/E-3. He was reassigned from Germany on 3 December 1967 and sent to Fort Belvoir, VA, for retraining in MOS 83D (Process Photographer). Upon completion of training, he was assigned to Fort Bragg, NC, and arrived on 3 May 1968. He attained the grade of Specialist Five/E-5 on 26 July 1968. e. On 20 November 1968, before a special court-martial, at Fort Knox, KY, the applicant was found guilty of two specifications of absenting himself from his unit (AWOL) at Fort Bragg, NC on or about 13 August 1968 until 19 September 1968, and 28 September 1968 until 15 October 1968. His sentence included restriction for 60 days, forfeiture of $65 pay per month for two months, and reduction to E3. On 22 November 1968, the sentence was approved. f. On 5 December 1968, the applicant accepted NJP under the provisions of Article 15 of the UCMJ, for two specifications of absenting himself from the U.S. Army Special Processing Detachment, Fort Knox, KY on or about 23 November 1968 until on or about 24 November 1968, and on or about 28 November 1968 until 29 November 1968. His punishment included a reduction to private E-1. g. On 22 April 1976, the applicant underwent a separation examination, during which he noted he was in good health and had previously broken bones but does not elaborate further on his previous ailment. The examining physician noted; he had a mole on the right side of his lip, and he was found qualified for separation. h. On 27 April 1976, court-martial charges were preferred against the applicant for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with one specification of being AWOL at Fort Dix, NJ, from on or about 5 October 1969 until on or about 13 April 1976. i. On 28 April 1976, after consulting with 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. In his request, he acknowledged he was making the request of his own free will, that no one had subjected him to coercion, and that counsel had advised him of the implications of his request. He further acknowledged he was guilty of the charge and elected not to submit a statement in his own behalf. j. Subsequently, the applicant’s chain of command recommended approval of his request for discharge with an undesirable discharge. His immediate commander noted he had been medically examined and was qualified for separation, and there did not appear to be any reasonable grounds to believe he was at the time of his misconduct mentally defective, deranged, or abnormal. k. On 6 May 1976, the separation authority approved the applicant's request for discharge for the good of the service. He further directed the applicant's reduction to the lowest enlisted grade and the issuance of a DD Form 258A (Undesirable Discharge Certificate). l. On 18 May 1976, the applicant was discharged accordingly. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, (Personnel Separations – Enlisted Personnel), paragraph 10, with separation program designator code "KFS" (for the good of the service) and Reentry Code 4. His service was characterized as UOTHC. He was credited with completing 2 years, 6 months, and 24 days of net active service this period, with 693 days of lost time. He was awarded or authorized the National Defense Service Medal and a marksmanship badge. 5. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 6. On 14 June 1972, the Army Discharge Review Board (ADRB) considered the applicant's request for discharge upgrade, and determined he was properly and equitably discharged and denied his petition for relief. 7. The applicant provides the documents listed above for consideration. 8. 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. 9. 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: 1. The Board determined 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. 2. 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 from 5 October 1969 until 13 April 1976) 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. 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 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) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 3. 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of Department of Veterans Affairs (VA) benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An UOTHC discharge was normally considered appropriate. 4. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005059 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1