IN THE CASE OF: BOARD DATE: 15 August 2023 DOCKET NUMBER: AR20230001631 APPLICANT REQUESTS: Reconsideration of his previous request for 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) • DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 31 March 1971 • Three Photographs FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC85-07222 on 6 August 1986. 2. The applicant states, while on active duty he was detained twice and placed in civilian jail for public intoxication. When the military police picked him up they took him to Fort Leonard Wood, MO. He further states, there was another person with the same name from his hometown who joined the Army and feels their records may have gotten confused. He was drinking as a minor at age 19 and would like to receive an upgrade to be able to apply for disability. 3. On 13 November 1967, the applicant enlisted into the Regular Army for a 3-year service obligation. Upon completion of training and award of military occupational specialty 64A (Light Vehicle Driver), he was assigned to the Republic of Vietnam (RVN) and arrived on 10 April 1968. 4. On 22 March 69, the applicant was granted a six-month extension of his tour in the RVN, and special leave to the U.S. beginning 1 April 1969. The available record indicates he never returned to the RVN. 5. His DA Form 20 (Enlisted Qualification Record), shows he was reported as absent without leave (AWOL) on the following dates: • from on or about 18 May 1969 until 15 September 1969 • from on or about 20 October 1969 until 29 December 1969 • from on or about 26 January 1970 until 21 December 1970 6. On 30 December 1970, the applicant underwent a psychiatric evaluation. The examination shows that he was diagnosed with a passive aggressive personality disorder, severe. He had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels. He had a severe character and behavior disorder with no violent tendencies, not amenable to further rehabilitative efforts or the potential to become an effective Soldier. He had the mental capacity to understand and participate in board proceedings and was psychiatrically cleared for separation. 7. On 4 January 1971, he underwent a separation examination and reported a history of broken fingers on his left hand. The examining physician found him qualified for separation. 8. On 8 January 1971, the applicant's intermediate commander formally requested the applicant’s elimination from service under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), due to unfitness. His commander noted the reasons as the applicant's psychiatric evaluation, excessive lost time, resistance to authority and regulations, and a pattern of behavior which rendered him a complete loss to the service. He recommended a waiver of further rehabilitation efforts. 9. On 22 January 1971, the applicant was notified of his commander’s recommendation that he be separated from service under the provisions of Army Regulation 635-212, for unfitness and his record of AWOLs. The applicant acknowledged receipt on the same date. 10. On 25 January 1971, the applicant consulted with counsel and was advised of the basis for the contemplated actions to separate him, of the rights available to him, and the effect of any action taken to waive those rights. He elected to waive consideration of his case before a board of officers, further representation by counsel, and elected not to submit a statement in his own behalf. 11. Subsequently, his chain of command recommended approval of his separation with an undesirable discharge. 12. On 16 February 1971, the separation authority approved the recommended separation. He directed the applicant be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate. 13. On 31 March 1971, the applicant was discharged accordingly, while in an AWOL status. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-212, in the lowest enlisted grade with separation program number 28B, by reason of unfitness. His service was characterized as UOTHC. He was credited with completing 1 year, 10 months, and 18 days of net active service this period, with 649 days of lost time. He was awarded or authorized the Nation Defense Service Medal, Vietnam Service Medal, and a marksmanship badge. 14. On 6 August 1986, the ABCMR considered the applicant’s petition for upgrade of his discharge. The Board determined after careful consideration of his military records and all other available evidence, that he was properly discharged, and denied his request. 15. The applicant provides his DD Form 214 and three pictures for consideration. 16. 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: 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 discharged for unfitness, following a series of misconduct including excessive lost time, resistance to authority and regulations, and a pattern of behavior which rendered him a complete loss to the service. However, the Board determined that based on his combat service in Vietnam, although his service did not rise to the level required for an honorable characterization of service; a general discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 xx: xx: xx: GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AC85-07222 on 6 August 1986. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 31 March 1971 showing his character of service as Under Honorable Conditions, General. • Separation Authority: No Change • Separation Code: No Change • Reentry Code: No Change • Narrative Reason for Separation: No Change 8/15/2023 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. 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. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), then in effect, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. Army Regulation 635-212, then in effect, provided the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NR) 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//