IN THE CASE OF:	  

		BOARD DATE:	       18 September 2008

		DOCKET NUMBER:  AR20080008315 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the reference to Presidential Proclamation      4313 (PP 4313) or the extension of PP 4313 on his DD Form 214 (Report of Separation from Active Duty) for the period ending 30 January 1975 be removed.

2.  The applicant states that his reasons for requesting this correction are to help him to feel better about himself and his service and because a discharge granted under PP 4313 and the extension pose a bar to receipt of Department of Veterans Affairs (VA) benefits.

3.  The applicant states that his discharge is unjust due to the actual character of his service and his experiences in Vietnam.  After serving in the Pennsylvania Army National Guard for 1 1/2 years, he volunteered for active duty, believing that to be the patriotic thing to do.  He served in Vietnam with Company B, 3d Battalion, 7th Infantry Regiment, 199th Light Infantry Brigade.  They were exposed to combat on an almost daily basis.  The unit was attacked frequently by the Viet Cong and the North Vietnamese Army, resulting in many casualties among his comrades.  

4.  The applicant states that, because he had become proficient at his job and he felt a duty to those who served before him and to those who would serve after him, he volunteered to serve another tour in Vietnam.  The second tour involved as much combat as did the first.  Toward the end of his second tour, he began to feel apprehensive about the chances of getting killed himself and fearful for the safety of the other men.  He knew he had changed and would not be the same 

ever again.  After his tour ended, he returned to the States.  He felt out of place.  When he went to his new unit at Fort Carson, CO, he heard rumors that they were going to be sent to Vietnam again.  He could not bear the thought of going back.  He had made it safely through two tours and knew he would not make it through another.  

5.  The applicant states that he went absent without leave (AWOL) to go home and try to forget the war and the Army.  He tried to drink away the nightmares and flashbacks he was having, but they persisted.  His family life is a shambles, but all is not negative in his life.  He belongs to the Military Order of the Purple Heart and conducts several fundraisers each year to obtain donations for the Wilkes-Barre, WV, VA Medical Center.  He is a past commander of the local Veterans of Foreign Wars post.  He drives several veterans from Berwick, PA, to the VA Medical Center and visits others who are confined to a hospital or nursing home.

6.  The applicant states that he believes being awarded a general discharge without the reference to “clemency” will help him in his endeavor to view his service in two combat tours to be “meritorious, professional, conscientious, loyal, diligent, and devoted to duty” as attested to in the citation for his second Army Commendation Medal (ARCOM).

7.  The applicant provides two letters of support, one dated 14 April 2008 and one dated 3 April 2008, addressed to the Board of Veterans’ Appeals; one undated letter of support from the Military Order of the Purple Heart; a copy of a newspaper article; his DD Form 214 for the period ending 30 January 1975; and citations from two of his Army Commendation Medal awards.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no additional statement.

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.  On 22 July 1965, the applicant enlisted in the Pennsylvania Army National Guard.  He was honorably discharged on 26 February 1968 for the purpose of enlisting in the Regular Army on 27 February 1968 for 3 years.

3.  The applicant arrived in Vietnam and was assigned to the 3d Battalion, 7th Infantry, 199th Infantry Brigade, on or about 16 March 1968.

4.  The applicant was awarded the ARCOM with “V” device, for heroism on          25 November 1968, on orders dated 18 February 1969; the ARCOM, for meritorious service for the period March 1968 to March 1969, on orders dated     8 March 1969; the ARCOM, for meritorious achievement for the period 3 October 1968 to 2 March 1969, on orders dated 14 November 1969; and the ARCOM, for meritorious service for the period March 1969 to October 1969, on orders dated 20 October 1969.

5.  Orders, dated 20 October 1969, authorized the applicant 30 days leave to visit the States.

6.  On 29 December 1969, after returning to his unit in Vietnam, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being AWOL from on or about 28 November 1969 to on or about     11 December 1969.  His punishment was to be reduced to Specialist Four, E-4, and to forfeit $140.00.

7.  The applicant departed Vietnam on 25 April 1970.  He was assigned             to Company B, 2d Battalion, 10th Infantry, Fort Carson, CO, on or about               4 September 1970.

8.  The applicant departed AWOL on 5 September 1970.

9.  By letter dated 25 November 1974, the applicant was notified of the provisions of PP 4313.  On 29 January 1975, he turned himself in under the provisions of PP 4313.  He indicated that the reason for his absence was that his nerves were shot and he needed a rest and he did not want to go back overseas.

10.  On 30 January 1975, the applicant was discharged, with a discharge under other than honorable conditions, under the provisions of PP 4313.  He had completed 2 years, 5 months, and 26 days of creditable active service and had a total of 1,614 days of lost time (186 days before his normal expiration of term of service (ETS) and 1,428 days subsequent to his normal ETS).  His DD Form 214 shows he was awarded the ARCOM with 3d oak leaf cluster and with “V” device, the Purple Heart, the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with device (1960), the Combat Infantryman Badge, and one overseas service bar.

11.  On 17 February 1977, the Army Discharge Review Board (ADRB) upgraded the applicant's discharge to general under honorable conditions under the provisions of the 19 January 1977 extension of PP 4313.  

12.  On 5 July 1978, the ADRB voted to affirm the applicant's upgraded characterization of service under uniform standards.  

13.  Presidential Proclamation 4313, dated 16 September 1974, was issued by President Ford and affected three groups of individuals.  One group was members of the Armed Forces who were in an unauthorized absence status. These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under PP 4313   or to stand trial for their offenses and take whatever punishment resulted.  For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform.  If they completed the alternate service satisfactorily, they would be entitled to receive a Clemency Discharge.  The Clemency Discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA.  

14.  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.  

15.  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 PP 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 VA benefits.  Such absence must have been the basis for discharge under other than honorable conditions and is computed without regard to expiration term of service; and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination is made under the published uniform standards and procedures.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in Vietnam for 25 months as an infantryman with an infantry unit.  His awards while in Vietnam included four ARCOMs (to include an ARCOM for heroism) and the Purple Heart.  While he did have a short period of AWOL when he returned to the States during his second tour, the fact remains he did return to Vietnam to complete his second tour.

2.  The applicant’s misconduct cannot be condoned, and it would not be equitable to delete the reference to PP 4313 or the extension of PP 4313 from his DD Form 214 and show he had a “straight” general under honorable conditions discharge.  

3.  Nevertheless, based upon the applicant’s extended period of commendable service while in Vietnam, it would be equitable for the ABCMR to further affirm his discharge upgrade.  Such an additional affirmation may work to allow him to obtain VA benefits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___xx___  ___xx___  ___xx___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reaffirming his general under honorable conditions characterization of service as earlier upgraded and affirmed by the Army Discharge Review Board.  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to deleting the reference to Presidential Proclamation 4313 or the extension of Presidential Proclamation 4313.  




      _______ xxxx_______   ___
               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.



ABCMR Record of Proceedings (cont)                                         AR20080008315





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ABCMR Record of Proceedings (cont)                                         AR20080008315



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