IN THE CASE OF: BOARD DATE: 3 November 2023 DOCKET NUMBER: AR20230002426 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions characterization of service to an under honorable conditions (general) character of service. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD 149 (Application for Correction of Military Record) • Applicant’s consent for release of information to the U.S. Senator for Illinois to the National Personnel Records Center (NPRC) 16 June 2022 • Senators respond to applicant’s inquiry 28 February 2023 • NPRC response to Senator 7 March 2023 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 needs an upgrade of his character of service to obtain Veteran Administration (VA) health benefits. 3. The applicant was inducted in the Army of the United States on 29 April 1970. 4. A certificate of training shows he successfully completed the supplyman's course from 17 August 1970 to 25 September 1970 and he was awarded military occupational specialty 76A (Supply Clerk). 5. His DA Form 20 (Enlisted Qualification Record) shows - a. He served in the Republic of Vietnam (RVN) from 7 November 1970 through 6 November 1971 (1 year) and was assigned to Headquarters Maintenance Support Company, 2nd Maintenance Battalion from 14 November 1970 to 26 September 1971. b. He was promoted or reduced in rank on the following dated - • Private (PVT)/E-1 - 29 April 1970 • Private (PV2)/E-2 - 29 August 1970 • Private First Class (PFC)/E-3 - 14 November 1970 • Specialist Four (SP4)/E-4 - 23 April 1971 • PFC/E-3 - 26 July 1971 • PVT/E-1 - 26 September 1971 6. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions: a. On 3 May 1971 - The applicant did at or near Headquarters Maintenance Support Company, 2nd Maintenance Battalion APO SF 96308 on or about 25 April 1971, having knowledge of a lawful order issued by a commissioned officer to return weapons to the arms room daily, an order which it was his duty to obey, did at Headquarters Main Support Company, 2nd Maintenance Battalion APO SF 96308, to wit disobey the same. b. The applicant did at or near Headquarters Maintenance Support Company, 2nd Maintenance Battalion (DS) APO 96308 on or about 18 May 1971, miss the following morning work formations, to wit: 14 May 1971, 0715-hours, 16 May 1971, 0715-hours, 18 May 1971, 0715-hours. 7. A Report of mental status evaluation, dated 7 September 1971, shows the applicant had the mental capacity to understand and participate in administrative proceedings deemed appropriate by his command. 8. DA Form 3647 (Clinical Record Cover Sheet) dated 29 September 1971 show the applicant was diagnosed with improper use of heroin not involving addiction or dependence. His rehabilitation potential was excellent but not feasible due to his misconduct. 9. DA Form 3647 disposition date 15 October 1971 show the applicant was seen by psychiatry who diagnosed him with drug abuse, moderate to acute, manifested by smoking 10 capsules of Heroin per day for 8 months in Vietnam. It was recommended that he be discharged. 10. The applicant’s service record is void of the complete facts and circumstances surrounding his discharge. However, Court-martial charges were preferred against the applicant for violations of the UCMJ; the relevant DD Form 458 (Charge Sheet) is not available for review. 11. The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. He was discharged in the lowest enlisted grade, PVT/E-1. His service was characterized as under other than honorable conditions, and he was credited with 1 year, 5 months, and 17 days of net active service this period. His DD Form 214 also shows: • date of rank to PVT/E-1 - 31 September 1971 • separation code - 246 • reenlistment code - 1B and 3A • no awards were listed 12. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no evidence that would indicate the contrary. 13. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents and the evidence found within the military record, the Board found relief was not warranted. The Board carefully considered applicant’s contentions, military record and regulatory guidance. The Board considered supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board noted the applicant’s length and nature of the misconduct and the reason for separation. After due consideration of the case, given the severity of the misconduct and, in the absence of mitigating circumstances, post-service achievements or letters of reference to weigh in support of a clemency determination, the Board determined 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 Board determined 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. 12/12/2023 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. ADMINISTRATIVE NOTES: administratively correct the applicant's DD Form 214, without action by the Board to add the following awards - • Republic of Vietnam CAMPAIGN Medal with Device (1960) • Vietnam Service Medal with two bronze service stars • Republic of Vietnam Gallantry Cross with Palm unit citation 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 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, an UOTHC discharge was normally considered appropriate. 3. 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. 4. Army Regulation 600-8-22 (Military Awards) - a. The National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 and 27 July 1954, 1 January 1961 and 14 August 1974, 2 August 1990 and 30 November 1995, and 11 September 2001 and a date to be determined. b. The Republic of Vietnam Campaign Medal with Device (1960) was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973. Qualifying service included assignment in Vietnam for 6 months or more. c. The Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973. Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations. Qualifying service also included temporary duty for 30 consecutive days or 60 nonconsecutive days in Vietnam or contiguous areas, except that the time limit may be waived for personnel participating in actual combat operations. This same regulation states a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each credited campaign. The applicant participated in the below campaigns: • Vietnam Counteroffensive, Phase VII, 1 July 1970—30 June 1971 • Consolidation I, 1 July 1971—30 November 1971 5. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows: Department of the Army General Orders (DAGO) 8, 1974, announced award of the RVN Gallantry Cross Unit Citation with Palm for service in Vietnam to the following units: a. Headquarters, United States Military Assistance Command, and its subordinate units during the period 8 February 1962 to 28 March 1973. b. Headquarters, United States Army Vietnam, and its subordinate units during the period 20 July 1965 to 28 March 1973. //NOTHING FOLLOWS//