IN THE CASE OF: 
 
  BOARD DATE: 12 September 2023 
 
  DOCKET NUMBER: AR20230000982 
 
 
APPLICANT REQUESTS: upgrade of his under other than honorable (UOTHC) discharge to an under honorable conditions (general) discharge. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record) 

• Self-Authored Statement 

• Discharge Certificate 

• DD Form 214 (Report of Separation from Active Duty) 

• Article: Ford Issues Partial Amnesty to Vietnam Deserters, 16 September 1974 

• Clemency Program Document 


 
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 that in 1972 he was an enlisted Soldier serving in Korea. He found out his wife was unfaithful in their marriage. He was unable to get approved for leave and mentally he needed to find out what was going on in his marriage. He returned home and found his marriage was failing. He stayed to deal with that situation. He maintained communication with his chain of command. During this timeframe, the only communication with home was by letter, which made it difficult to communicate. This resulted in more desperation to take care of his family matters back home.  
 
     a.  On 16 September 1974, President Ford issued a conditional amnesty to Vietnam deserters. He was never declared a deserter although the dates set forth in this proclamation was for desertion between 4 August 1964 to 28 March 1973, he feels that as a Soldier, who was never a deserter, he should be given consideration. He went absent without leave (AWOL) in July 1973, missing the required dates by only a few months.  
 
     b.  Under the proclamation, deserters and draft evaders were given the opportunity to serve the public in many different job opportunities. After he was discharged, he started as an orderly at a hospital, then worked in security for the hospital. Since 1990, he has been serving as a constable for his community. If given the opportunity at the time to serve in a public service role or even continue military service, he would have served with good faith and distinction. While on active duty he was a reliable and proud Soldier. He served in Korea, only a few miles from the demilitarized zone, honorably. He was a dedicated combat engineer in the Army that built bridges for tanks and Soldiers without problems or discrepancies.  
 
     c.  He takes full responsibility for his actions. However, his actions were that of a 21 year-old man who wanted to repair or find out what was going on in his marriage, especially when leave was not granted for him. He was unaware there was a process to request a discharge upgrade. 
 
3.  The applicant enlisted in the Regular Army on 25 September 1972 for two years. His military occupational specialty was 12A (Pioneer).  
 
4.  The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform code of Military Justice (UCMJ) on: 
 
• 26 October 1972, for the purpose of avoiding service as an enlisted person intentionally injured himself by taking an overdose of unidentified pills, on or about 25 October 1972; his punishment consisted of forfeiture of $50.00 pay for one month and restriction (suspended) 

• 31 July 1973, for AWOL on or about 2 July 1973 until 30 July 1973; his punishment consisted of forfeiture of $150.00 pay for two months and oral reprimand 


 
5.  The applicant was reported AWOL on 23 September 1973 and dropped from the unit rolls as a deserter on 22 October 1973. He surrendered to civil authorities on 5 November 1973. 
 
6.  Court-martial charges were preferred against the applicant on 20 November 1973, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from: 
 
• on or about 11 August 1973 until on or about 9 September 1973 

• on or about 23 September 1973 until on or about 1 October 1973 

• on or about 22 October 1973 until on or about 5 November 1973 

• on or about 11 November 1973 until on or about 14 November 1973 


 
7.  On 26 November 1973, the applicant consulted with legal counsel and 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.  
 
     a.  Subsequent to receiving legal counsel, the applicant voluntarily requested  
discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), Chapter 10, for the good of the service-in lieu of trial by court-martial. In his request for discharge, he acknowledged he had not been coerced and made the request of his own free will. 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 Veterans Administration, and he could be deprived of his rights and benefits as a Veteran under both Federal and State laws.  
 
     b.  He elected to submit a statement in his own behalf, which states he made the statement voluntarily, knowingly, and of his own free will. He did not like the Army. His personal assessment of his rehabilitation potential was the Army could not help with his personal problems. He realized he was going to get an undesirable discharge and lose his benefits, but he did not care. 
 
8.  The applicant's immediate commander recommended approval of the applicant's  
request for discharge and recommended the issuance of an DD Form 258A (Undesirable Discharge Certificate). The chain of command concurred. 
 
9.  The separation authority approved the applicant's request for discharge on 3 December 1973, in lieu of trial by court-martial. He directed the applicant be reduced to the lowest enlisted grade and receive an Undesirable Discharge Certificate. 
 
10.  The applicant was discharged on 9 January 1974. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of AR 635-200, paragraph 10, with Separation Program Number 246 [for the good of the service-in lieu of trial by court-martial] with Reenlistment Code RE 3 and 3B. His service was characterized as UOTHC. He completed 1 year and 13 days of net active service. He had 92 days of lost time. He was awarded or authorized the National Defense Service Medal and the Armed Forces Expeditionary Medal (Korea). He served in Korea for 3 months and 1 day. 
 
11.  The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Such discharges are voluntary requests for discharge in lieu of trial by court-martial.  
 
12.  The applicant provides a copy of his DD Form 214 and Undesirable Discharge Certificate. Additionally, he provides the Ford amnesty article, discussed above and information regarding clemency. 
 
13.  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: 
 
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 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 insufficient evidence of post-service achievements, letters of reference/support, or evidence of a persuasive nature 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 
 
xx: xx: xx: 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. 
 
  9/12/2023

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 (AR) 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 a Soldier whose military record is satisfactory but not  
sufficiently meritorious to warrant an honorable discharge.  
 
     c.  Chapter 10 provided that a member who had 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 and must have  
included the individual's admission of guilt. Although an honorable or general discharge  
was authorized, a UOTHC discharge was normally considered appropriate.  
 
3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NRs) on 25 July 2018, 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 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//