IN THE CASE OF: BOARD DATE: 9 November 2023 DOCKET NUMBER: AR20230004187 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to general under honorable conditions or an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Applicant's statement * Character reference letters * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), 26 April 1972 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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: a. He is requesting that his other than honorable discharge status from the U.S. Army be upgraded to honorable or general under honorable conditions. He is remorseful that he was not able to complete his designated time that he was required to serve. He is not making any excuse for not completing his term of duty, however, there were factors that were involved that caused him not to complete his assignment. b. Personally, he was young, just married and had two young children that he had to leave to serve his country. In addition, while he was serving in the U.S. Army he was subjected to racial discrimination and injustices almost daily. These factors combined took a toll on him emotionally. Yet, he made a conscious decision to put those things behind him and serve his country regardless. Unfortunately, everything that he was dealing with, it all eventually took a toll on him, not to mention the impact from fighting in the Vietnam War. Even though he would later be subjected to a dishonorable discharge it did not stop him from still wanting to make an impact in his community and give back in some manner. c. He helped the youth in his community, played his instruments at events to entertain the young and old, and worked at a medical facility where he transported people with health issues. He also worked in the School District for many years up to his retirement. He enjoys being a help to the school and those who were in need. In addition, he serves as a deacon in his local church. He has since remarried and lives with his wife who has been a tremendous support to him as now, he is currently dealing with some major health issues. d. Although he was dishonorably discharged, that does not define who he is. His good behavior and desire to help others are the reasons after serving the time he did in the U.S. Army. He is asking the Board to reconsider his current military status from dishonorable to honorable. 3. A review of the applicant's official military record shows the following: a. He enlisted in the Regular Army (RA) for 3 years on 28 August 1967. DD Form 4 (Enlistment Record - Armed Forces of the United States) lists his Date of Birth as . He was years of age when he enlisted in the RA. b. DA Form 20 (Enlisted Qualification Record) shows: * he served in Vietnam from 26 March 1968 to 19 March 1969 * his highest rank held was specialist four (SP4)/E-4 Temporary with a Date of Rank of 2 September 1968 * he was Absent with Leave (AWOL) from 21 July 1969 to 28 July 1970 (373 days) * he was in pretrial confinement from on or about 30 July to 6 November 1970 * he was AWOL again from 6 November 1970 to 25 February 1971 (112 days) c. On 15 May 1969, the applicant accepted non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice for not being at his appointed place of duty from 0615 hours until 1630 hours, while exceeding the pass limitations on 12 May 1969. His punishment consisted of 14 days extra duty and restriction. He did not appeal. d. On 10 August 1970, court-martial charges were preferred against the applicant for being AWOL from on or about 21 July 1969 to 29 July 1970. e. On 19 August 1970, the applicant provided a statement and wrote, in pertinent part: (1) After spending 12 months in Vietnam and being assigned to Fort Belvoir, Virginia, his military pay decreased, and his family had not adjusted themselves to live with the decrease in his pay. This setback caused indebtedness and his family was not able to live a decent and comfortable life as other military families around the United States. So, he decided to talk to his commanding officer and the finance section reluctantly refused to cooperate. On 22 October 1969, he left on pass to go home and strengthen his financial problem at home. (2) He obtained a job with a construction firm in. During the 12-month period he was AWOL his job paid him a maximum sum of $6,000.00 which he thinks a special four in the Army would barely survive. His wife was 2 months pregnant at the time and her allotment had stopped. He did not want his wife to suffer, so he continued to work like any decent Soldier would have done. (3) Considering the circumstances, he decided the best alternative for him was to resign for the benefit of the Army. He would appreciate the commander's cooperation with his request to be discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel). The main reason he returned to military control was to protect his family. f. On 8 September 1970, he consulted with legal counsel and was fully advised in this matter. After consulting with counsel, the applicant voluntarily requested to be discharged under the provisions of Chapter 10, AR 635-200, for the good of the service. He acknowledged that he had not been subjected to coercion with respect to his request for discharge. (1) The applicant was advised of the basis for his contemplated trial by court- martial under circumstances which could lead to a bad conduct or dishonorable discharge, of the effects of this request for discharge, and the rights available to him. (2) He acknowledged that he understood, if the request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He understood that, as a result of the issuance of such a discharge, he shall 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. He also understood that he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge g. The applicant's immediate and intermediate commanders recommended disapproval of his request to be discharged for the good of the service in lieu of trial by court-martial and requested approval to proceed with Special Court-Martial proceedings. h. On 5 October 1970, the separation authority held the applicant's discharge request in abeyance pending results of court-martial proceedings and authorized the trial by Special Court-Martial. i. On 13 October 1970, the separation authority revoked the holding in abeyance action. The request for "resignation" was approved and trial by Special Court-Martial convened by the headquarters was directed. An Undesirable Discharge was issued and, if the applicant was serving in a grade higher than private (PV1)/E-1, he would be reduced to the lowest enlisted grade. He further directed the applicant be notified. j. DA Form 20B (Insert Sheet to DA Form 20 - Record of Court-Martial Conviction) shows the applicant was tried and convicted by a special court-martial for being AWOL from on or about 21 July 1969 until 28 July 1970. His sentence consisted of confinement to hard labor for 4 months (suspended), and reduction to the rank of private (PV1)/E-1. The sentence was adjudged on 27 October 1970 and approved on 22 December 1970. k. On 4 March 1971, he provided another statement and wrote that, he felt that he performed his duty as best he could. He spent a year in Vietnam and from there he was assigned to Fort Belvoir. He reiterated his family's financial struggles and stated it was the reason for him being AWOL on more than one occasion. He requested to be discharged again. l. On 8 March 1971 – (1) Headquarters, U.S. Army Training Center, Fort Dix, published Special Orders Number 67, which assigned the applicant to the Personnel Control Facility (confinement), Fort Dix, after having returned to military control from an AWOL and dropped from rolls status, effective 25 February 1971. (2) Court-martial charges were preferred against the applicant for being AWOL from on or about 6 November 1970 to 25 February 1971. m. Medical documents show the applicant underwent a pre-separation medical examination and was cleared for discharge. n. After consulting with legal counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Chapter 10, AR 635-200. (1) He was advised of the basis of his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, the provisions of Chapter 10, AR 635-200, the nature and effects of an undesirable discharge, and of the rights to submit statements in his own behalf to accompany the request. (2) Legal counsel furnished the applicant with a list containing most Federal veterans' benefits and the effect of an undesirable discharge upon each listed benefit, prior to the completion of this request. The applicant acknowledged he understood that he shall 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. o. His chain of command recommended approval of his request to be discharged and recommended he be issued an Undesirable Discharge Certificate. p. On 18 March 1971, the legal office reviewed the applicant's request for discharge and recommended that the request be approved, and an Undesirable Discharge Certificate be furnished. q. On 22 March 1971, the separation authority approved the applicant's request to be discharged under the provisions of AR 635-200 for the good of the service and directed he be furnished an Undesirable Discharge Certificate. r. The applicant was discharged from the Army on 26 April 1972 with an Under Conditions Other Than Honorable character of service. DD Form 214 shows he was discharged in the rank of PV1/E-1, under the provisions of AR 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial. He completed 3 years and 25 days of net service with 584 days lost. Item 15 (Reenlistment Code) shows "RE-4." He was awarded or authorized the: * National Defense Service Medal * Vietnam Campaign Medal * Vietnam Service Medal * Two Overseas Bars * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) 4. The applicant provides character reference letters which state he has always been a hard-working family man. He was ordained as a deacon in the Lord's church, and he takes his walk with Christ seriously. He is trustworthy and a dependable man. He is a man of good morals and faithfulness. He has always been positive amid his sickness. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. 2. The Board found the applicant’s service in Vietnam, the circumstances surrounding his periods of unauthorized absence described in the record, and the evidence he provided regarding his post-service conduct all support clemency. Based on a preponderance of the evidence, the Board determined the applicant’s character of service should be changed to under honorable conditions (general). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 to show his character of service as under honorable conditions (general). 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, USC, 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) 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. The ABCMR is not an investigative agency. 3. AR 635-200 (Personnel Separations – Enlisted Personnel) in effect at the time sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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. A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of the service. 4. 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/NRs) regarding equity, injustice, or clemency determinations. a. 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. b. 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. 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. 5. Published guidance to the Boards for Correction of Military/Naval Records (BCM/NRs) clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230004187 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1