RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2008
	DOCKET NUMBER:  AR20070017159 


	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.


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	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, in effect, that his undesirable discharge be upgraded. 

2.  The applicant states, in effect, that his records show that he was absent without leave (AWOL).  In effect, he states that he was authorized leave [emergency] to go home because of a family member’s death.  He went to the American Red Cross for assistance with extending his leave.  He alleges that he was falsely accused of departing AWOL and the American Red Cross was at fault.  Additionally, he alleges that he never received orders regarding an extended leave of absence.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 1 July 1970; a letter, dated 14 September 2007, from the Chief, Congressional and Special Actions, Army Review Boards Agency; instructions for applying to the Army Board for Correction of Military Records; and Army Regulation 15-185, dated 31 March 2006.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was inducted into the Army of the United States on 5 June 1967.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 36C (lineman).  He was advanced to private first class on 13 December 1967.  The applicant was honorably discharged on 15 April 1968 for the purpose of immediate reenlistment.  

3.  He reenlisted on 16 April 1968 for a period of four years.  He was assigned to Vietnam on or about 11 July 1968.

4.  On 3 December 1968, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order.  His punishment consisted of 14 days restriction; 14 days extra duty; and a forfeiture of $22.00 pay.

5.  On 11 January 1969, the applicant was convicted by a special court-martial, pursuant to his pleas, of two specifications of failing to obey a lawful order.  He was sentenced to confinement at hard labor for 2 months (suspended for 2 months) and a forfeiture of $39.00 pay for 5 months.  

6.  Headquarters, 52nd Signal Battalion Letter Orders Number 1-52, dated 22 January 1969, show the applicant was authorized 30 days of emergency leave effective 22 January 1969.

7.  The applicant’s service personnel records contain a DA Form 19-32 (Military Police Report), dated 12 March 1969, which shows he was AWOL on 2 March 1969 and he surrendered to the Military Police on 7 March 1969.  The report indicated the applicant possessed a letter from the American Red Cross, dated 7 March 1969, which indicated he had reported to the McKeesport Office of the American Red Cross on 18 February 1969 and requested a 7-day extension to his leave.  The report also indicated that the applicant was advised that the extension was approved on 20 February 1969 and that the extension papers would be mailed to him.  The report further indicated the applicant contacted the American Red Cross on 7 March 1969 and advised them that he had not received any orders.  The American Red Cross advised the applicant to report to the Military Police in Pittsburg, Pennsylvania for further disposition.  The applicant was detained in the Allegheny County Prison, Pittsburgh, Pennsylvania until 12 March 1969 and was transported to Fort Meade, Maryland.

8.  A DD Form 553 (Absentee Wanted by the Armed Forces), dated 4 September 1969, shows the applicant was AWOL on 5 April 1969 and he was dropped from unit rolls on 4 September 1969.

9.  The applicant’s Charge Sheet (DD Form 458) is not available.  His DD Form 214 shows he was AWOL from 5 April 1969 to 16 June 1970.  

10.  On an unknown date, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Affairs (VA) if an undesirable discharge was issued.  He did not submit statements in his own behalf.  
11.  On 1 July 1970, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with issuance of an Undesirable Discharge Certificate.

12.  The applicant was discharged from active duty on 1 July 1970 under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an undesirable discharge.  His DD Form 214 erroneously shows he entered active duty on 5 April 1968.  He had completed a total of 1 year and 14 days of active military service with 438 days of lost time due to AWOL.  

13.  On 10 June 1977, the Army Discharge Review Board (ADRB) upgraded the applicant’s undesirable discharge to a general under honorable conditions discharge.  The ADRB found that the applicant met the secondary criteria for age, general aptitude, length of service, and education level at time of discharge. 

14.  On 19 May 1978, the ADRB reviewed the applicant’s upgrade to general under honorable conditions under the provisions of Public Law 95-126 and voted not to affirm the upgrade.  

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

16.  Army Regulation 635-200, paragraph 3-7a, 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  Army Regulation 635-200, paragraph 3-7b, 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.

18.  The Department of the Army Special Discharge Review Program (SDRP) was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program."  It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary.  The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case.  An individual who had received a punitive discharge was not eligible for consideration under the SDRP.  

19.  A Presidential Memorandum was issued by President Ford on 19 January 1977 (sometimes referred to as PP 4313 Extension).  This memorandum mandated the issuance of a general discharge to individuals who had: (1) applied for consideration under PP 4313; (2) been wounded in action or decorated for valor; and (3) records free of any compelling reason to deny relief.  This was a mandate to the ADRB from the President and was to be applied by the ADRB without any applications from the affected individuals.  Whether the individuals had performed alternate service was not an issue to be considered.  

20.  Public Law 95-126 provided in pertinent part for a “Relook Program.”  All cases upgraded from under other than honorable conditions under the Special Discharge Review Program or extension to Presidential Proclamation 4313 had to be relooked and affirmed or not affirmed under uniform standards.  Two of the principal features of Public Law 95-126 were:  (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for Veterans Administration (VA) benefits.  Such absence must have been the basis for discharge under other than honorable conditions and is computed without regard to expiration of term of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The applicant’s service record shows he received one Article 15 for failing to obey a lawful order and one special court-martial for two specifications of failing to obey a lawful order.  It appears that he was charged for being AWOL for 438 days.  It appears it was not for the period of his emergency leave extension.  It appears it was for his period of AWOL from April 1969 to June 1970.
3.  It is noted that the ADRB upgraded the applicant’s undesirable discharge to a general under honorable conditions discharge.  It appears the applicant’s discharge was reviewed under the SDRP or Public Law 95-126.  However, the discharge upgrade was not affirmed.  

4.  The applicant's service did not meet the standards of honorable service as defined in Army Regulation 635-200.  Therefore, the characterization of the discharge is appropriate considering all the facts of the case.  There also is no apparent error, injustice, or inequity on which to base recharacterization of his discharge to honorable.

5.  It appears the applicant’s overall record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant a general discharge or fully honorable discharge.

6.  The applicant's contentions were noted.  However, there is no evidence submitted or evidence of record which shows the actions taken in this case were in error or unjust.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

x______ x_____  x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




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          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.