IN THE CASE OF:	  

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080009374 


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, in effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).   

2.  The applicant states, in effect, he went absent without leave (AWOL) because he was used to being a field Soldier and could not cope with being in a classroom setting.  He claims he served his country honorably for 3 or 4 years prior to committing the offense that led to his discharge.  

3.  The applicant provides a self-authored statement and a third-party statement in support of his application. 

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's record shows that he initially enlisted in the Regular Army (RA) and entered active duty on 28 August 1964, and was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  He served for 2 years, 6 months, and 17 days, until being honorably discharged for the purpose of immediate reenlistment on 14 March 1967.  

3.  On 15 March 1967, the applicant reenlisted for 6 years.  His Enlisted Qualification Record (DA Form 20) shows that he was promoted to sergeant (SGT) on 29 November 1966, and that this is the highest rank he attained while serving on active duty.  It also shows that he was reduced to corporal (CPL) on 22 October 1969, to private first class (PFC) on 10 December 1969, and to private/E-1 (PV1) on 8 April 1970.  The DA Form 20 also shows he completed two overseas tours in Korea, and that during his active duty tenure, he earned the National Defense Service Medal, Armed Forces Expeditionary Medal, and Army Good Conduct Medal.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following five separate occasions for the offenses indicated:  7 July 1965, for leaving his sentinel post without authority; 15 March 1968, for absenting himself from his unit without authority; 24 May 1969, for writing a bad check and two specifications of failing to go to his appointed place of duty at the time prescribed; 22 October 1969, for three specifications of failing to go to his appointed place of duty at the time prescribed; and 28 October 1969, for wrongfully appearing in improper uniform.   

5.  The applicant's record also shows that on 31 March 1970, a Special 
Court-Martial (SPCM) found him guilty of violating Article 86 of the UCMJ by being absent without leave (AWOL) from on or about 29 December 1969 through on or about 20 March 1970.  The resulting sentence was confinement at hard labor for 45 days, forfeiture of $20.00 per month for six months, and reduction to PV1.  

6.  The applicant's Official Military Personnel File (OMPF) is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  The record does include a discharge request completed by the applicant on 28 September 1974, which shows that after consulting with legal counsel and being 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 UD; the nature and effect of his pledge to perform alternative service; and of the procedures and rights available to him , he voluntarily requested discharge for the good of the service under the provisions of Presidential Proclamation (PP) Number (#) 4313. 
7.  In his request for discharge, he acknowledged his understanding that his absence was characterized as willful and persistent unauthorized absent which rendered him triable under the UCMJ and could have lead to the imposition of a bad conduct or dishonorable discharge.  He further acknowledged his understanding that he would be discharged under other than honorable conditions, and would receive an UD, and that he was advised of the and understood the adverse nature of such a discharge and the possible consequences thereof.  He further confirmed his understanding that as a result of the issue of an UD, he would be deprived of all service benefits, that he would be ineligible for all benefits administered by the Department of Veterans Affairs (VA), and that he would be deprived of his rights and benefits as a veteran under both Federal and State law, and finally that he could expect to encounter substantial prejudice in civilian life because of an UD.  

8.  The record also contains a properly constituted separation document 
(DD Form 214) that shows he was discharged on 28 September 1974, for the good of the service, by reason of willful and persistent unauthorized absence pursuant to PP # 4313.  It further confirms he was separated under other than honorable conditions and received an UD, and that he had completed a total of 
5 years, 5 months, and 20 days of creditable active military service, and had accrued 1683 days of time lost due to AWOL and confinement.  The separation document also contains an entry in Item 27 (Remarks) that indicates he agreed to serve 19 months of alternate service.  There are no documents on file in his record, and he has failed to provide any, that indicate he completed this alternate service subsequent to his discharge, or that he was issued a clemency discharge.  

9.  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.  


10.  The Department of Defense (DOD) SDRP was directed in a memorandum from the Secretary of Defense in 1977.  The SDRP stipulated that all former service members who received UD’s or GD’s during the period 4 August 1964 through 28 March 1973, were eligible for review under the SDRP.  It further indicated that individual’s who received a UD during the RVN era would have their discharges upgraded if they met one of the following criteria:  wounded in combat in Vietnam; received a military decoration, other than a service medal; successfully completed an assignment in SEA or in the Western Pacific in support of operations in SEA; completed alternate service or was excused from completion of alternate service under the clemency program instituted in 1974; or received an honorable discharge (HD) from a previous tour of military service. 

11.  On 8 October 1977, Public Law 95-126 added the provision that 180 days of continuous absence, if it was used as the basis for an under other than honorable conditions (UOTHC) discharge, to that list of reasons for discharge which acted as a specific bar to eligibility for benefits administered by the VA.  

12.  Public Law 95-126 further required that uniform discharge review standards be published that were applicable to all persons administratively discharged or released from active duty under other than honorable conditions.  It further required that discharges upgraded under the automatic criteria established under the SDRP be reconsidered under the newly established uniform discharge review standards.  On 29 March 1978, these newly established uniform discharge review standards were published in Department of Defense (DOD) 
Directive 1332-28.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded based on his overall record of honorable service, which includes combat service in the RVN, was carefully considered.  However, there is an insufficient evidentiary basis to support granting the requested relief. Although the applicant's record is void of a complete separation packet containing all the facts and circumstances surrounding his discharge processing, the record does include the applicant's request to be discharged for the good of the service pursuant to PP # 4313 based on his willful and persistent unauthorized absence, which he completed after consulting with legal counsel being advised of the impact of an UD.  

2.  The record also contains a properly constituted DD Form 214 that confirms the basis for his discharge and carries with it a presumption of Government regularity in the discharge process.  


3.  Absent any evidence to the contrary, it is concluded the applicant’s discharge processing was accomplished in accordance with the applicable regulations, and it appears all requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process.  The applicant's record reveals an extensive disciplinary history that includes his acceptance of NJP on five separate occasions between 1965 and 1969, during both of his enlistments, and a SPCM conviction in 1970.  Further, his record confirms he accrued 1683 days of time lost duty to AWOL and confinement.  As a result, the UD he received accurately reflects the overall quality of his service and did not support the issue of an honorable or general discharge at the time of his discharge, nor does it support an upgrade at this time.  

4.  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.

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.




      _______ _x   _______   ___
               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)                                         AR20080009374



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ABCMR Record of Proceedings (cont)                                         AR20080009374


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