IN THE CASE OF: BOARD DATE: 22 November 2023 DOCKET NUMBER: AR20230004134 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions characterization of service to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 he did his duty for his country by volunteering to go to Vietnam. He spent one year in Vietnam and had no Article 15’s. He needs medical help. 3. The applicant enlisted in the Regular Army on 14 November 1969. The highest rank/grade he held was specialist five (SP5)/E-5. 4. On 25 November 1970, he accepted non-judicial punishment under Article 15, of the uniform code of military justice, for absenting himself from his unit, on or about 15 November 1970 and did so remain absent until on or about 24 November 1970. His punishment was forfeiture of $45.00 pay per month for two months. 5. DA Form 20 (Enlisted Qualification Record) indicates he served in the Republic of Vietnam from on or about 4 December 1970 through 3 December 1971. 6. A DA Form 3545 (Deserter Wanted by the Armed Forces) dated 7 April 1972, shows his unit reported him absent without leave (AWOL) on 6 March 1972, and dropped from the unit rolls on 4 April 1972. 7. On 31 July 1972, the applicant was apprehended by the Federal Bureau of Investigation and returned to military control. 8. A Standard Form 88 (Report of Medical Examination), dated 10 August 1972, shows he underwent a complete medical examination and was found qualified for separation. 9. On 14 August 1972, court-martial charges were preferred against the applicant. The DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 6 March 1972 and did remain absent until on or about 31 July 1972. 10. On 16 August 1972, the applicant consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, the effects of his request for discharge, and the rights available to him. Following his consultation, he voluntarily requested discharge in lieu of trial by court-martial under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 (Discharge for the Good of the Service in Lieu of Trial by Court-Martial). In his request, he acknowledged: a. He was not subject to coercion, and he was advised of the implications attached to his request. He understood that if his request for discharge was accepted, he may be discharged with a characterization of service under other than honorable conditions and furnished an Undesirable Discharge Certificate. b. He understood that, as a result of the issuance of such a discharge, he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans’ Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. 11. He elected to submit a statement on his own behalf, stating he wanted out of the Army because he only had six months left and could not take any more orders or the Army way of life. If he were returned to duty, he would go AWOL again. He urged his commander to grant him a discharge and given his service record and Vietnam awards and decorations, he asked that his commander consider granting him a general discharge. 12. On 17 August 1972, the applicant’s defense counsel submitted a formal request to the separation authority to consider the applicant for a general discharge. His justification for the request was the applicant’s time in the grade of E-5, service in Vietnam, and his award of the Bronze Star, Combat Infantryman Badge, Army Commendation Medal, and Vietnam Service Medal. 13. On 25 August 1972, the immediate and intermediate commanders recommended approval of the applicant's request for discharge and the issuance of an Undesirable Discharge Certificate. The intermediate commander further recommended disapproval of the applicant’s defense counsel’s request for issuance of a general discharge. 14. On 26 August 1972, a Judge Advocate General conducted a review of the applicant’s request for discharge. He found the applicant’s request to be legally sufficient and concurred with the intermediate commander’s recommendations. 15. On 30 August 1972: a. The separation authority approved the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, and ordered the issuance of an Undesirable Discharge Certificate with Separation Program Number (SPN) 246 and the applicant's reduction to private/E-1. b. The applicant was discharged, under the provisions of AR 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions characterization of service in the grade of E-1. He received a SPN of “246” and a reentry code of “RE-3.” His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) contains the following entries: (1) He completed 2 year, 4 months, and 12 days of net active service and 1 year, 6 months, and 14 days of foreign service during the period covered. (2) Block 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) show he was awarded the National Defense Service Medal. (3) Block 26a (Non-Pay Periods Time Lost) shows lost time from 6 March 1972 to 30 July 1972 and 1 August 1972 to 8 August 1972. (4) Block 30 (Remarks) shows service in Vietnam from August 1970 to 8 October 1971. 16. His DA Form 20 lists the following awards in Block 41 (Awards and Decorations): * National Defense Service Medal * Vietnam Service Medal * Republic of Vietnam Campaign Medal with Device 1960 * Overseas Bar * Army Commendation Medal * Combat Infantryman Badge 17. A review of the applicant’s service record contains sufficient evidence to support he is eligible for awards that are not annotated on his DD Form 214 for the period ending 30 August 1972. These awards will be added to his DD Form 214 as administrative corrections and will not be considered by the Board, to show in block 24 18. There is no indication the applicant applied to the Army Discharge Review Board within that Boards 15-year Statute of limitations. 19. Regulatory guidance in effect at the time provided discharges under the provision of AR 635-200, Chapter 10, where voluntary requests from the Soldier to be discharged in lieu of a trial by court-martial. 20. The applicant provided argument and/or evidence the Board should consider, along with the applicant's overall record, in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. One possible outcome was to deny relief based on the applicant’s misconduct. Although, upon review of the applicant’s petition and available military records, the Board majority found the applicant provided no post service achievements or character letters of support that could attest to his honorable conduct for consideration by the Board. However, the Board found the applicant’s honorable service during his deployment in the Republic of Vietnam after his AWOL mitigated his misconduct. The Board determined under liberal consideration, there is sufficient evidence of in-service mitigating factor to grant partial relief with an upgrade to general under honorable conditions. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X : :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. In addition to the administrative notes annotated by the Analyst of Record (below the signature), the Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period ending 30 August 1972 showing his characterization of service as General Under Honorable Conditions. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of the applicant’s under other than honorable conditions characterization of service to honorable. 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: A review of the applicant’s records shows he is authorized additional awards not annotated on his DD Form 214 for the period ending 30 August 1972. As a result, amend his DD Form 214 by adding: * Overseas Bar * Vietnam Service Medal w/ 2 bronze service stars * Vietnam Counteroffensive Phase VII * Consolidation I * Republic of Vietnam Campaign Medal with Device (1960) * 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. AR 635-200, in effect at the time, set forth the primary authority for separating enlisted personnel. a. Chapter 10 states in part, a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice (UCMJ) and the Manual for Court-Martial, include bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial. In addition, the request for discharge may be submitted at any stage in the processing of the charges until the court-martial convening authority's final action on the case. Commanders will also ensure that a member will not be coerced into submitting a request for discharge in lieu of trial by court-martial. The member will be given a reasonable time (not less than 72 hours) to consult with a consulting counsel and to consider the wisdom of submitting such a request for discharge. b. An honorable discharge is a separation with honor. The 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 there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. c. An under honorable conditions (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 under other than honorable discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct and in lieu of trail by court-martial. 3. AR 600-8-22 states the Vietnam Service Medal is awarded to all members of the Armed Forces of the United States based on their qualifying service in Vietnam after 3 July 1965 through 28 March 1973; a bronze service star will be awarded for wear on the Vietnam Service Medal for the Soldier’s participation in each recognized campaign, including: * Vietnam Counteroffensive, Phase VII (1 July 1970 to 30 June 1971) * Consolidation I (1 July 1971 to 30 November 1971) 4. Department of the Army Pamphlet (DA PAM) 672-3 (Unit Citation and Campaign Participation Credit Register) shows, per Department of the Army General Order (DAGO) Number 8, dated 1974, all units that served in Vietnam received the Republic of Vietnam Gallantry Cross with Palm Unit Citation. 5. 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 (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 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) AR20230004134 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1