IN THE CASE OF: BOARD DATE: 21 July 2023 DOCKET NUMBER: AR20230000020 APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States * Applicant’s Personal Statement * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), 30 September 1971 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, clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge. He was drafted and told to report to the fairgrounds in San Bernardino, California to be sworn in on 3 November 1970. He was told that if he did not report he could go to jail for two years. He was also told that he only had to serve two years. He was sworn in, went to boot camp at Fort Ord, California, was put on a bus, and ended up at Fort Eustis, Virginia. After being at Fort Eustis for about three months he was asked to reenlist, but he said no. As time went on, they continued to ask him to reenlist and even told him that he could receive a $10,000 bonus and go to school for two weeks and become a warrant officer, but he said no. He had to talk to his commanding officer (CO), and he told him that he only had to serve two years and after that he was getting out. The CO asked him if he was looking to get discharged. The applicant told him that he volunteered to go to Vietnam, and he even signed papers to go to Vietnam. He started being moved around a lot, then he received a note in his mailbox to see his CO, who told him he was being discharged. He asked the CO if it was a dishonorable discharge and the CO responded with no. The applicant told him thank you and he signed the papers, and he was free to go. He did not ask anymore questions and he was out of the Army. 3. A review of the applicant’s service record shows: a. The applicant was inducted into the Army of the United States on 30 November 1970. b. Summary court-martial charges were preferred against the applicant on 1 June 1971 for one specification of Absent without Leave (AWOL) from on or about 12 February 1971 to on or about 27 February 1971, one specification of AWOL from on or about 3 March 1971 to on or about 21 March 1971, and one specification of AWOL from on or about 26 March 1971 to on or about 5 May 1971. The applicant pled guilty, and he was sentenced to forfeit $95.00 for one month, and to be confined at hard labor for 30 days, which was suspended for 90 days. c. Court-martial charges were preferred against him on 10 September 1971. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 7 June 1971 to on or about 5 September 1971. d. Summary Court-Martial Order Number 1052, dated 10 September 1971, shows the order published in summary court-martial order number 852, as suspends, execution of approved sentence to confinement to hard labor for 30 days, adjudged on 28 May 1971, and promulgated in Summary Court-Martial Order Number 852, not subsequently modified, was vacated. The unexecuted portion of the sentence to confinement is duly executed. It stated the applicant will be confined in the Post Stockade, Fort Ord, California, and the confinement will be served therein, or elsewhere as competent authority may direct. e. On 15 September 1971, after consulting with legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10. The applicant acknowledged that he made the request of his own free will and was not coerced by any person. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to at least one of the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. 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 Veteran’s Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State law and encounter substantial prejudice in civilian life because of an under other than honorable discharge. f. On 16 September 1971, the applicant made a statement in his own behalf. He stated he went AWOL because he did not want to be a part of the Army and laws. He was drafted against his own free will, from a good life to no life at all. He stated he was against the war and would not cooperate by any means to help destroy or kill. He would try as hard as he could to get a discharge and go AWOL again if forced to. g. On 20 September 1971, the immediate commander recommended approval of the applicant's separation under the provisions of AR 635-200, chapter 10, and issuance of an undesirable discharge. The intermediate commanders echoed the immediate commander's recommendation h. On 28 September 1971, the separation authority approved the recommended discharge, directed the applicant be issued an under other than honorable conditions discharge and reduced to the lowest enlisted grade (PVT/E-1). i. The applicant was discharged on 30 September 1971, under the provisions of AR 635-200, chapter 10, in the rank/grade of (PV1)/E-1, and his service was characterized as under other than honorable conditions. His DD Form 214 shows he completed 3 months and 28 days of net service during the period covered, he was awarded the National Defense Service Medal, and he accrued 210 days of lost time. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the frequency and nature of the misconduct and the reason for separation. The Board found no evidence of in-service mitigating factors to overcome the misconduct and weigh in favor of a clemency determination and the applicant provided none on his own behalf. Based on the preponderance of evidence available for review, 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 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provided that an individual whose conduct has rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. The request for discharge may be submitted at any time after court-martial charges are preferred against him. Commanders will ensure that there is no element of coercion in submitting a request for discharge for the good of the service. The member will be given a reasonable time to consult with counsel and to consider the wisdom of submitting such a request for discharge. If he elects to submit the request, the member will personally sign the written request, certifying that he understands that he may receive a discharge under other than honorable conditions and that he understands the adverse nature of such a discharge and the possible consequences thereof. An undesirable discharge certificate was normally furnished to an individual who was discharged for the good of the service. However, the discharge authority may direct an honorable or general discharge, if warranted. b. An honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks, he may be furnished an honorable discharge. c. A general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An undesirable discharge is an administrative separation from the service under conditions other than honorable. It may be issued for unfitness or misconduct. An undesirable discharge will be directed only by a commander exercising general court- martial jurisdiction, a general officer in command who has a judge advocate officer on his staff, or by higher authority, based on the approved recommendation of a board of officers, unless the member waives the board or requests discharge for the good of the Service. 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. 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. 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) AR20230000020 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1