ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:      BOARD DATE: 30 March 2021 DOCKET NUMBER: AR20200009791 
APPLICANT REQUESTS: The applicant requests an upgrade of his undesirable discharge, and a personal appearance before the Board. 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. 
DD Form 149 (Application for Correction of Military Record) 

. 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 

. 
Department of Veterans Affairs (VA) letter dated 2 January 2019 


FACTS: 
1. 
The applicant did not file within the three year time frame provided in Title 10, United States 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 requests the nature of his discharge which is currently undesirable, be reviewed for upgrade. His current discharge status does not allow him to receive VA benefits for disabilities linked to his military service in the Republic of “Viet Nam”. 

b. 
His military service in the Republic of Viet Nam was honorable in nature and he was promoted while in country to specialist four (SP4). His encounters with the civilian and his military organizations after his return was very different. The Army work atmosphere was about reducing the ranks as soon as possible. The work environment and treatment of Army personnel reflected it. That along with his encounters with a civilian population angry towards Viet Nam veterans fostered an immediate resentment on his part towards the military and he no longer felt the commitment to the nation as when he first enlisted. 

c. 
The nature of his discharge impacts personal health benefits he honorably earned during his service in the Republic of Viet Nam and prior to his return from there. 


His changes in behavior after his return were driven by a very different work [environment]. The only benefits he qualifies for are behavioral care. 
3. 
On 19 March 1971, the applicant enlisted in the Regular Army for a period of 3 years. He completed training requirements and was awarded military occupational specialty 63B2O (Wheeled Vehicle Mechanic). 

4. 
On 7 July 1972, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his place of duty. 

5. 
On 28 August 1972, he accepted NJP under the provisions of Article 15 of the UCMJ for absenting himself from his place of duty. 

6. 
On 21 October 1972, Special Orders show the applicant was reassigned to Headquarters and Headquarters Company, 704th Maintenance Battalion in accordance with rehabilitative transfer requirements. 

7. 
On 4 October 1972, the applicant was arraigned, tried, and convicted by summary court-martial.  He was found guilty of absenting himself from his place of duty from 0630 hours to on or about 1630 hours on 21 August 1972. He was sentenced to perform hard labor without confinement for 35 days; to forfeit $100.00 pay per month for one (1) month; to be reduced to the grade of private (E-1). His sentence was approved on 13 October 1972. 

8. 
On 6 March 1973, the applicant’s commander submitted a Certificate of Unsuitability for Enlistment/Reenlistment to bar him from reenlisting in the Army. In pertinent part, his commander stated: 


a. 
He considered the applicant to be a substandard Soldier who should be barred from Enlistment/Reenlistment into the Military Service. The applicant had been assigned to his unit since 21 October 1972. 

b. The applicant had a record of misconduct as evidenced by the following: 
. 
Summary Court-Martial on 13 October 1972 for “AWOL” (absent without leave) while assigned to Company A, 4th Supply and Transport Battalion, Fort Carson, CO 

. 
AWOL from formation on 2 March 1973; the applicant was moved back into the barracks by the Commanding Officer 



c. 
The applicant’s personal appearance had continually been substandard.  He had been counseled several times a week by his Platoon Sergeant, Section Sergeant, Staff 


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Sergeant D, and Specialist Five K.  First Sergeant S and the commander had also counseled the applicant regarding his sloppy appearance. 
d. He had counseled the applicant on numerous other occasions regarding his job performance, attitude and appearance. He had advised the applicant of the adverse consequences which might result from his actions. The counseling was to no avail; therefore, he forwarded this certificate for approval. The commander indicated the applicant had an “unsatisfactory” conduct rating and a “fair” efficiency rating. A statement by the applicant acknowledging he had read and understood the allegations made by his commander was enclosed, and the applicant elected not to make a statement. 
9. 
On 15 March 1973, the applicant’s Bar to Enlistment/Reenlistment was approved. 

10. 
On 6 April 1973, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from on or about 12 to 22 March 1973. His punishment consisted of forfeiture of $60.00 pay for one month, extra duty for 14 days (suspended until 28 April 1973), and restriction for 7 days (suspended until 28 April 1973).  The suspensions of extra duty and restriction were vacated on 10 April 1973. 

11. 
On 8 May 1973, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from on or about 27 April to 2 May 1973. His punishment consisted of forfeiture of $60.00 pay for one month and extra duty for 14 days. 

12. 
On 22 May 1973, a Report of Mental Status Evaluation shows the applicant had no psychiatric disorder; he was mentally responsible; and he had the mental capacity to understand and participate in board proceedings. He was medically cleared for administrative separation actions on 25 May 1973. 

13. 
Special Orders Number 199 issued on 18 July 1973 assigned the applicant to the 


U.S. Army Garrison, Fort Carson, Colorado Transfer Point with a reporting date of 20 July 1973. The applicant had an approved separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13 (Separation for Unfitness or Unsuitability). 
14. The applicant’s record does not contain a complete discharge packet; however, his record did contain a DD Form 214 that shows: 
a. 
On 20 July 1973, the applicant was discharged under the provisions of Army Regulation 635-200, with the separation program number (SPN) 28B, unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities. 

b. 
His character of service was listed as “under conditions other than honorable” and he was issued an Undesirable Discharge Certificate. 

c. 
He completed 2 years, 3 months, and 17 days of total active service with time lost from 12 to 21 March 1973 and 27 April to 2 May 1973. 

d. 
The applicant served in the Republic of Vietnam from 9 August 1971 to 23 April 1972. 


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e. He was awarded or authorized the National Defense Service Medal, Vietnam 
Campaign Medal with “60 Device”, Vietnam Service Medal with bronze service star, 
Marksman Marksmanship Qualification Badge with M-16 rifle bar, and Overseas Bar.  
15. 
The applicant provides a VA letter stating Congress recently passed a law that allows VA to provide mental and behavioral health care to certain former service members with Other Than Honorable discharges, including those who were on active duty for more than 100 days and served in a combat role, or experienced sexual harassment or sexual assault while serving. 

16. 
Army Regulation 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 Army Board for Correction of Military Records (ABCMR).  In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 

17. 
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. In pertinent part, it provided for the separation of individuals for unfitness, and frequent incidents of a discreditable nature with civil or military authorities. 

18. 
In regards to the applicant's request for a personal appearance, Army Regulation 15-185, states an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. 

19. 
The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. 


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BOARD DISCUSSION: 
1. 
After reviewing the application and all supporting documents, the Board found relief was warranted. The Board carefully considered the applicant's request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant’s prior period of honorable service and awards received and the frequency and nature of the misconduct; the Board found sufficient evidence to weigh a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received was harsh and found an upgrade to a general under honorable conditions was warranted. 

2. 
The applicant's request for a personal appearance was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance before the Board is not necessary to serve the interest of equity and justice in this case. 


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BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XXX :XXX 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 amending the DD214 for the period ending 20 JUL 72 to show the characterization of service as Under Honorable Conditions (General). 
X 
CHAIRPERSON 
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 NOTE(S): 
Not Applicable 
REFERENCES: 
1. 
Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 

2. 
Army Regulation 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 Army Board for Correction of Military Records (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.  It is not an investigative agency. 

3. 
Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. In pertinent part, it provided for the separation of individuals based on unfitness, and frequent incidents of a discreditable nature with civil or military authorities. 

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. 
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