RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 October 2005
      DOCKET NUMBER:  AR20050006086


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Hubert O. Fry, Jr.            |     |Member               |
|     |Mr. Robert Rogers                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge be upgraded.

2.  The applicant states that after his return from Vietnam, people at the
airport called him a baby killer and spit upon him.  He continues that he
couldn't deal with how he was treated and wanted to get away from
everything.  The applicant concluded that he knew he was wrong, but
requests consideration because he was young and frustrated at that time.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty) and three letters of support.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 30 September 1974, the date of separation.  The application
submitted in this case is dated 6 April 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  At the age of 23, the applicant was inducted in the Army on 12 October
1967 for a period of two years.  After completion of basic and advanced
individual training, he was awarded military occupational specialty 11B10
(Infantryman).  He served in Vietnam during the period 17 April 1968
through 16 April 1969.

4.  The applicant's records only contain part of the facts and
circumstances of his discharge.

5.  The applicant's service records contain a Joint Alternate Service Board
form which shows that the Joint Alternate Service Board reviewed the
applicant's records and determined he was required to serve 14 months of
alternate service. This form also shows the applicant was absent without
leave (AWOL) during the period 1 May 1969 through 27 September 1974 [1968
days].

6.  The applicant's service records contain a Statement to Board for
Alternate Service which shows the applicant provided a reason for his AWOL.
 The applicant stated he was AWOL due to family problems and being away
from them for so long.  The applicant continues when he saw his family, he
decided to never leave them again.  The applicant authenticated this form
in his own hand.

7.  ADMINCEN Form 1966-3 (Enlisted Statement-Request for Discharge for the
Good of the Service), dated 30 September 1974 and signed by the applicant,
shows that the applicant voluntarily requested discharge for the good of
the service under the provisions of Presidential Proclamation Number 4313.

8.  The applicant indicated in his request that he understood he would be
discharged under other than honorable conditions and furnished an
Undesirable Discharge Certificate; that he would be deprived of all service
benefits, that he would be ineligible for all benefits administered by the
Veterans Administration (VA); and that he may deprived of his rights and
benefits as a veteran under both Federal and State law.  He acknowledged
that he may expect to encounter substantial prejudice in civilian life
because of an undesirable discharge.  He also acknowledged that within
15 days of the date of receipt of the Undesirable Discharge Certificate, he
must report to his State Director of Selective Retention to arrange for
performance of alternate service.  He further indicated that he understood
that satisfactory completion of such alternate service would be
acknowledged by issuance of a Clemency Discharge Certificate; however, this
certificate would not alter his ineligibility for any benefits predicated
upon his military service.

9.  ADMINCEN Form 1966-5 (Reaffirmation of Allegiance and Pledge to
Complete Alternate Service), dated 30 September 1974, shows the applicant
pledged to complete 14 months of alternate service.

10.  On 30 September 1974, the applicant was discharged with an undesirable
discharge characterized as under other than honorable conditions under the
provisions of Presidential Proclamation Number 4313.  He had served 1 year,
6 months and 16 days of total active service with 1,968 days of lost time
due to AWOL.

11.  On 12 November 1975, the applicant was terminated from enrollment in
the Reconciliation Service Program because he did not complete his required
period of alternate service.  The decision to terminate him from the
program was based on the applicant's dismissal from his approved job for
unsatisfactory performance and failure to respond to official
correspondence.

12.  The applicant submitted three letters of support.  The authors
essentially stated how the applicant is well-respected in the community and
always willing to help others.

13.  There is no evidence in the available records which shows that the
applicant applied to the Army Discharge Review Board for an upgrade of his
discharge within that board’s 15-year statute of limitation.

14.  Presidential Proclamation 4313, issued on 16 September 1974, provided
for the issuance of a clemency discharge to certain former soldiers, who
voluntarily entered into and completed an alternate public work program
specifically designated for former soldiers who received a less than
honorable discharge for AWOL related incidents between August 1964 and
March 1973.  Under this proclamation, eligible deserters were given the
opportunity to request discharge for the good of the service with the
understanding that they would receive an undesirable discharge.  Upon
successful completion of the specified alternative service, the deserter
was issued a clemency discharge.  The clemency discharge did not affect the
individual’s underlying discharge, and did not entitle him to any VA
benefits.  Rather, it restored federal and, in most instances, state civil
rights which may have been denied due to the less than honorable discharge.
 If a participant of the program failed to complete the period of
alternative service the original undesirable characterization of service,
would be retained.

15.  Army Regulation 635-200, paragraph 3-7, provides that 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 (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

16.  Army Regulation 635-200, paragraph 3-7, provides that 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.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.





DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he
was young and frustrated.

2.  Records indicate that the applicant was 24 years old at the time he was
AWOL and he was 30 years old at the time of his discharge.  However, there
is no evidence that indicates that the applicant was any less mature than
other soldiers of the same age who successfully completed military service.


3.  The applicant's voluntary request for discharge for the good of the
service pursuant to the provisions of Presidential Proclamation Number 4313
was administratively correct and in conformance with applicable
regulations.

4.  The type of discharge directed and the reason for discharge was
appropriate considering all of the facts of the case.

5.  Evidence of record shows the applicant failed to complete his required
period of alternate service in accordance with the provisions of
Presidential Proclamation Number 4313.  Therefore, the applicant was not
issued a clemency discharge.

6.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  This misconduct also renders his service
unsatisfactory.  Therefore, he is not entitled to either a general
discharge or an honorable discharge.

7.  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.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 September 1974; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 29 September 1977.  The applicant did not file within
the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_HOF____  _RR____  __BJE__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                       Barbara J. Ellis___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050006086                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051019                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1974/09/30                              |
|DISCHARGE AUTHORITY     |Presidential Proclamation # 4313        |
|DISCHARGE REASON        |Under other than honorable conditions   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]