RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 July 2007 
	DOCKET NUMBER:  AR20070001160 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Eric N. Andersen

Chairperson

Mr. Scott W. Faught

Member

Ms. Ernestine L. Fields

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 his discharge be upgraded.

2.  The applicant states, in effect, that the military put him on community service for 12 months.  The applicant continues that the military told him the community service would upgrade his discharge to honorable.  He concludes that he did not show up for his community service because he did not know where to go.

3.  The applicant did not provide any additional documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 March 1975, the date of his discharge.  The application submitted in this case is dated 11 January 2007.

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.  The applicant's record shows he was inducted into the Army of the United States on 24 January 1968 for two years and the highest rank he attained while serving on active duty was specialist/pay grade E-4.  Records further show the applicant served in the Republic of Vietnam during the period 20 June 1968 to 31 May 1969.

4.  The applicant's records show that he earned the following awards during his active duty tenure:  National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with 1960 Device, Republic of Vietnam Gallantry Cross with Palm, and one Overseas Bar. 

5.  The applicant's records do not show any significant acts of valor during his military service.

6.  Upon his departure from the Republic of Vietnam on 31 May 1969, the applicant was reassigned to Fort McClellan, Alabama.  On 14 July 1969, after failing to report to Fort McClellan, the applicant was placed in an Absent Without Leave status and was subsequently dropped from the rolls on 13 August 1969.  He remained AWOL until being apprehended by civilian authorities on 23 March 1975 and returned to military control at Fort Benjamin Harrison, Indiana on 30 March 1975.  

7.  On 31 March 1975, the applicant consulted with legal counsel and was advised of the nature of the offenses for which he could be tried, the maximum permissible punishment that could be imposed, the possible consequences of an undesirable discharge, the nature and effect of his pledge to perform alternate service, and of the procedures and rights available to him.  Subsequent to receiving this legal counseling, the applicant voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation 4313, dated 16 September 1974.  

8.  In his request for discharge, he indicated that his absence was characterized as a willful and persistent unauthorized absence for which he was subject to trial by court-martial for violation of the Uniform Code of Military Justice (UCMJ).  He further indicated that he was making the request for discharge of his own free will and was not subjected to any coercion whatsoever.  He further acknowledged he would receive an undesirable discharge and that he understood the adverse nature of such a discharge and the possible consequences thereof.  He also acknowledged that he understood he could be ineligible for all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He finally acknowledged his understanding that he could encounter substantial prejudice in civilian life based on his undesirable discharge.  

9.  On 31 March 1975, the applicant was separated with an under other than honorable conditions character of service after completing 1 year, 5 month, and 22 days of creditable active military service and accruing 190 days of time lost before normal expiration of term of service and 1,891 days of time lost after normal expiration of term of service due to AWOL.  The applicant agreed to serve 12 months alternate service and the DD Form 214 (Report of Separation From Active Duty) he was issued confirms he was separated for the good of the service by reason of willful and persistent unauthorized absence pursuant to Presidential Proclamation 4313.



10.  The applicant's records show that on 10 June 1976, the applicant was sent a letter by the Manager, Reconciliation Service Division, advising him that the Director of the Selective Service System had terminated him from enrollment in the Reconciliation Service Program because he did not complete his required period of alternate service. The letter further states that the applicant had left an approved job without authorization and that he later signed a letter declining further participation in the program.

11.  Presidential Proclamation 4313, dated 16 September 1974, 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.

12.  Clemency Discharges issued pursuant to Presidential Proclamation 4313 did not impact the underlying discharge a member received and did not entitle the individual to any benefits administered by the VA.  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 AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  The evidence of record confirms the applicant committed an offense that was punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, he voluntarily requested discharge for the good of the service pursuant to Presidential Proclamation 4313.  The record further confirms all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  

3.  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.  
4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 March 1975; therefore, the time for the applicant to file a request for correction of any error or injustice expired on   30 March 1978.  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

_ENA_____  _EF___  __SWE__  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.




_____Eric N. Andersen___
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.