MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 November 2001
         DOCKET NUMBER: AR2001060952

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Regan K. Smith		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES: In effect, that he entered the Army at the age of 18 and served in the Republic of Vietnam (RVN) for 1 ½ years. He claims that during his combat tour in the RVN he witnessed the death of many of his fellow soldiers. He became addicted to drugs, returned home on leave, and after cleansing himself of the substances he returned to active duty in the RVN. Upon his return, he discovered that his wife and child had been killed in the war. He claims that after witnessing so much death and discovering his wife and child had died, he could no longer serve in the Army and returned home. He had many nightmares and flashbacks which resulted in his seeking the help of a therapist. Now after serving his country, he does not qualify for any benefits due to his UD and he would like the status of his service changed. In support of his application, he includes a citation awarding him the Air Medal for his achievement while participating in sustained aerial flight in support of combat ground forces in the RVN during the period 9 to 14 April 1968.

EVIDENCE OF RECORD: The applicant's military records show:

On 31 August 1966, he enlisted in the Regular Army for 3 years at the age of
18. He successfully completed basic training and advanced individual training (AIT). Upon completion of AIT, he was awarded military occupational specialty (MOS) 36C (Lineman) and he was assigned to the RVN for his first permanent duty station.

The applicant’s record shows that during his tenure on active duty he earned the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Air Medal, and 3 Overseas Bars. There are not other acts of valor, significant achievement or service warranting special recognition documented in his record.

The applicant’s record does contain an disciplinary history that includes his trial and conviction by both a summary and special court-martial. In addition, the record confirms an extensive record of AWOL related misconduct that includes his accruing 314 days of time lost prior to his normal expiration of term of service (ETS) and 1763 days subsequent to his normal ETS.

On 5 March 1969, the applicant was found guilty by a summary court-martial of being AWOL from 1 October 1968 to 12 January 1969. The resultant sentence included a forfeiture of $73.00, a reduction to private/E-1, and hard labor without confinement.

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On 26 March 1970, the applicant was tried and convicted by a special
court-martial of being AWOL from 20 March 1969 to 27 February 1970. The resultant sentence included confinement at hard labor for 5 months and a forfeiture of $35.00 per month for 5 months.

On 29 September 1974, after an extensive period of AWOL, the applicant consulted legal counsel and was advised of the nature of the offense for which he could be tried, the maximum permissible punishment that could be imposed, the possible consequences of an UD, and the nature and effect of his pledge to perform alternate service. Subsequent to this counseling, the applicant voluntarily executed a request for discharge for the good of the service pursuant to the provisions of Presidential Proclamation (PP) Number (#) 4313, dated
16 September 1974.

In connection with his request for discharge for the good of the service, the applicant signed a “Reaffirmation of Allegiance and Pledge to Complete Alternative Service” statement. In this statement, he in effect acknowledged that in contravention with his enlistment oath he voluntarily went AWOL and that he recognized that he had a further service obligation as a citizen. He further agreed to perform 11 months of alternate service under the supervision of the Selective Service System.

Accordingly, on 29 September 1974, the applicant was discharged from active duty after completing 2 years, 4 months, and 6 days of creditable active military service and after having accrued a total of 2077 days of time lost due to AWOL and confinement. The separation document (DD Form 214) issued to and signed by the applicant upon his separation shows that he received an UD and that he agreed to perform 11 months of alternate service pursuant to PP # 4313.

On 19 September 1975, a letter from the Reconciliation Service Division Manager of the National Headquarters of the Selective Service System terminated the applicant from the Reconciliation Service Program. This action was based on his not completing his required period of alternate service. This letter further indicated that the applicant’s termination from the program was the result of his being non-cooperative with efforts to place him on an approved job, his failure to report for a scheduled interview, and his failure to respond to official correspondence.

In PP # 4313, dated 16 September 1974, the President announced a clemency program designed to provide deserters an opportunity to work their way back into American society. This proclamation pertained to all individuals who were carried administratively as deserters if their last period of AWOL was between
4 August 1964 and 28 March 1973.

Under this program, eligible enlisted deserters were offered the opportunity to request an undesirable discharge for the good of the service if they agreed to perform alternate service under the supervision of the Selective Service System. Successful completion of alternate service entitled a participant to receive a Clemency Discharge Certificate.

Clemency Discharges issued pursuant to PP # 4313 did not impact the underlying discharge a member received and did not entitle the individual to any benefits administered by the Department of Veterans Affairs. The Army Discharge Review Board adapted the policy that a Clemency Discharge would be considered by a board in its deliberations but that the discharge per se did not automatically require relief be granted.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board noted the applicant’s contentions that his reaction to the death he witnessed in the RVN was a mitigating factor in his AWOL related misconduct and the resulted UD. However, while the Board understands his difficulty in coping with his experiences, the Board finds this factor alone is not sufficiently mitigating to warrant the requested relief.

2. The evidence of record clearly shows that the applicant was given a second chance to redeem himself and complete his service obligation to his country through alternate service pursuant to the provisions of PP # 4313. It further shows that he failed to abide by the terms of his discharge agreement and as a result was terminated from the Reconciliation Service Program by the Selective Service System for cause. Therefore, he did not earn entitlement to a
Clemency Discharge under the terms of PP # 4313.

3. Although earning a Clemency Discharge did not mandate a discharge upgrade, in the opinion of the Board, the applicant’s failure to abide by the terms of his discharge pledge to perform alternate service eliminates any consideration he may have received by this Board had he satisfied those terms and earned a Clemency Discharge.

4. The evidence of record confirms the applicant’s discharge processing was accomplished in accordance with the applicable regulations. Further, the Board is satisfied that all requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and the characterization of the applicant’s service was commensurate with his overall record of service.

5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

6. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__JLP__ __MHM__ __RKS___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001060952
SUFFIX
RECON
DATE BOARDED	2001/11/20
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1974/11/29
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	Good of the Service pursuant to PP#4313
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.