IN THE CASE OF:	  

		BOARD DATE:	  	  16 October 2008

		DOCKET NUMBER:  AR20080012567 


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 be upgraded to a general, under honorable conditions or an honorable discharge.

2.  The applicant states, in effect, that his discharge should be upgraded.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 20 May 1971; DD Form 215 (Correction to DD Form 214), dated 14 April 1976; and State of Illinois, Department of Veterans Affairs (VA), Decatur, Illinois, IDVA Form 200, dated 15 July 2008.

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 military service records show he enlisted and entered active duty in the Regular Army for a period of 3 years on 1 November 1968. 
Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The applicant’s records show that he served in the Republic of Vietnam (RVN) from 16 April 1969 through 15 April 1970.

3.  The applicant’s military service records contain a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 10 February 1969.  This document shows that nonjudicial punishment was imposed by the battalion commander against the applicant for, on or about
2130 hours, 3 February 1969, at Fort Polk, Louisiana, without proper authority, absenting himself from his unit and remaining absent until on or about
2210 hours, 7 February 1969, in violation of Article 86, UCMJ.  His punishment consisted of reduction to the grade of private (PV1)/pay grade E-1, forfeiture of
$50.00 per month for 2 months, 25 days restriction, and 25 days extra duty as directed by the unit commander.

4.  The applicant’s military service records contain a DA Form 2627-1, dated
20 May 1969.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about 1700 hours, 1800 hours, and 2200 hours, 19 May 1969, at Bolling Hospital, Tan Son Nhut (RVN), for the purpose of avoiding his duty as a rifleman, feign an illness by manipulating the instrument used to obtain his temperature.  His punishment consisted of reduction to the grade of private (PV2)/pay grade E-2 and forfeiture of $60.00 per month for 2 months.

5.  The applicant’s military service records contain a DA Form 2627-1, dated
7 July 1969.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about 0800 hours,
4 July 1969, at Fire Base All-American (RVN), having knowledge of a lawful order issued by his superior officer, an order which it was his duty to obey, directing him to report to the mess hall for kitchen police, failed to obey the same, in violation of Article 92, UCMJ.  His punishment consisted of forfeiture of
$38.00 for 1 month.

6.  The applicant’s military service records contain a copy of Headquarters,
3rd Brigade, 82nd Airborne Division (Vietnam), Special Court-Martial Order Number 101, dated 28 September 1969.  This order shows the applicant was arraigned and tried on Charge I, violation of the UCMJ, Article 90, with the specification of having received a lawful command from his superior 
commissioned officer, to go on a combat operation, did, on or about 14 July 1969, willfully disobey the same; Charge I, violation of the UCMJ, Article 86, with the additional specification that, on or about 1800 hours, 16 August 1969, without authority, absenting himself from his unit and remaining absent until on or about 1830 hours, 23 August 1969; Charge II, violation of the UCMJ, Article 86, without proper authority, absenting himself from his organization, located at Tan Son Nhut Air Force Base (RVN), and remaining absent until on or about 29 July 1969; Charge II, violation of the UCMJ, Article 95, with the additional specification that, on or about 2210 hours, 23 August 1969, escaping from the lawful custody of a Soldier who was posted on guard by a superior commissioned officer; and Charge III, violation of the UCMJ, Article 87, for on or about 1430 hours, 20 July 1969, through neglect, miss the movement of his unit, with which he was required in the course of duty to move.  This order also shows the applicant entered pleas of guilty to all charges and specifications and he was found guilty of all charges and specifications.  He was sentenced to be confined at hard labor for 6 months, to forfeit $85.00 pay per month for 6 months, and to be reduced to the grade of private (E-1).  (No previous convictions were considered.)  The sentence was adjudged on 30 August 1969.  On 28 September 1969, only so much of the sentence as provided for confinement at hard labor for 6 months, reduction to the grade of private (E-1), and forfeiture of $82.00 per month for
6 months was approved and ordered duly executed, except for that portion adjudging confinement at hard labor for 6 months, was suspended for 6 months, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence was to be remitted without further action.

7.  The applicant’s military service records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 28 May 1970.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about 0001 hours, 21 May 1970, at Fort Hood, Texas, absenting himself from his assigned place of duty and remaining absent until on or about 0400 hours, 28 May 1970.  His punishment consisted of 14 days restriction and 14 days extra duty (to run concurrently).

8.  The applicant's military service records contain a DA Form 20 (Enlisted Qualification Record).  Item 44 (Time Lost Under Section 972, Title 10, United States Code (USC) and Subsequent to Normal Date ETS) of this document shows that the applicant was absent without leave (AWOL) for 9 days from
20 July 1969 to 28 July 1969; AWOL for 7 days from 16 August 1969 to
22 August 1969; AWOL for 45 days from 29 May 1970 to 13 July 1970; AWOL for 82 days from 22 October 1970 to 11 January 1971; AWOL for 14 days from 12 February 1971 to 25 February 1971; AWOL to dropped from rolls (DFR) for
2 days from 8 March 1971 to 9 March 1971; and AWOL for 33 days from
10 March 1971 to 8 April 1971.

9.  The applicant's military service records contain a DD Form 458 (Charge Sheet), dated 26 April 1971.  This document shows that the second lieutenant assigned to the U.S. Army Personnel Control Facility, U.S. Army Training Center, Fort Campbell, Kentucky, preferred court-martial charges against the applicant for his violation of Article 86 of the UCMJ, Specification 1, in that the applicant did, on or about 12 February 1971, without authority, absent himself from his unit (i.e., Special Processing Detachment, Headquarters Command, Fort Benning, Georgia), and did remain so absent until on or about
26 February 1971; and Specification 2, in that the applicant did, on or about
8 March 1971, without authority, absent himself from his unit (i.e., U.S. Army Personnel Control Facility, U.S. Army Training Center and Fort Campbell, Fort Campbell, Kentucky), and did remain so absent until on or about 8 April 1971.

10.  On 5 May 1971, the applicant voluntarily requested a discharge for the good of the Service under the provisions of Army Regulation 635-200, Chapter 10.  The applicant's legal counsel certified that he had advised the applicant of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, of the possible effects of an undesirable discharge if the request for discharge is approved, and the rights available to the applicant.

11.  The applicant signed his request for discharge which showed that he was making the request under his own free will and acknowledged guilt to the offenses charged; that he was afforded the opportunity to speak with counsel; that he was advised he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Department of Veterans Affairs benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

12.  On 13 May 1971, the major serving as Commander, U.S. Army Personnel Control Facility, U.S. Army Training Center and Fort Campbell, after careful review of the applicant’s records in conjunction with his negative attitude toward honorable service, indicated that the best interest of the U.S. Army would be served by approval of the applicant’s request for discharge.  The commander recommended approval of the applicant’s request for discharge with an Undesirable Discharge.

13.  On 20 May 1971, the brigadier general serving as Commander, U.S. Army Training Center and Fort Campbell, approved the applicant's request for discharge from the U.S. Army under the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service with Separation Program Number (SPN) 246; directed reduction of the applicant to the lowest enlisted grade; and the applicant be furnished a DD Form 258A (Undesirable Discharge Certificate).  Accordingly, the applicant was discharged on 20 May 1971.

14.  The DD Form 214, issued to the applicant upon his separation, shows that he was discharged on 20 May 1971, under the provisions of Army Regulation 635-200, Chapter 10, discharge for the good of the Service.  The applicant was issued SPN "246" and his character of service was recorded as under conditions other than honorable.  Item 30 (Remarks), in pertinent part, shows the applicant had 192 days lost under Title 10, USC, section 972.  This document also shows that, at the time of his discharge, the applicant had completed a total of 2 years, and 9 days net active service this period.

15.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

16.  The applicant's military service records contain a copy of Headquarters, Department of the Army, The Adjutant General, Washington, District of Columbia, letter, dated 3 May 1976, and DD Form 215, dated 14 April 1976.  These documents show that the applicant was awarded a clemency discharge, pursuant to Presidential Proclamation 4313 of 16 September 1974, and was advised he may apply to the Army Discharge Review Board for review and possible change of his discharge.

17.  On 5 November 1980, the applicant applied to the Army Discharge Review Board (ADRB) requesting upgrade of the character of his under other than honorable conditions discharge to a general or an honorable discharge.  On
31 August 1981, the ADRB determined that the applicant was properly and equitably discharged.  Accordingly, the ADRB voted unanimously to deny the applicant’s appeal.

18.  In support of his application, the applicant provides a copy of his DD Form 214, with an effective date of 20 May 1971 and DD Form 215, dated 14 April 1976.  These 2 documents were previously introduced and considered in this Record of Proceedings.  He also provides a State of Illinois, DVA, Decatur, Illinois, IDVA Form 200, dated 15 July 2008, that requests consideration of the applicant’s request for upgrade of his discharge.

19.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 10 of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

20.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  This Army regulation states that the purpose of a separation document is to provide the individual with documentary evidence of their military service at the time of separation.  Therefore, it is important the information entered thereon is complete and accurate as of that date.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.

21.  Army Regulation 635-5-1 (Separation Program Numbers (SPN)), in effect at the time of the applicant's separation from active duty, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  It identifies the SPN of “246” as the appropriate code to assign enlisted Soldiers discharged for the good of the Service.  

22.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

23.  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.

24.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the Service.

25.  Presidential Proclamation 4313 was issued on 16 September 1974.  It provided, in pertinent part, that individuals absent from the military for a long period of time, primarily in connection with the war in the Republic of Vietnam, could avail themselves of a clemency program.  If they returned to military control, swore allegiance again to the United States and agreed to perform a period of alternate service under the supervision of the Selective Service, a 
Clemency Discharge would be given in the name of the President.  In essence, this was a neutral discharge and a pardon issued by the President of the United States.  However, the individual would normally receive an undesirable discharge from the military service.  Service discharge review boards and correction boards are not empowered to change the Clemency Discharge, but may review the underlying circumstances of the discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his undesirable discharge should be upgraded to an honorable or a general, under honorable conditions discharge.  However, he provides insufficient evidence in support of his claim.

2.  The evidence of record shows that the applicant was awarded a clemency discharge, pursuant to Presidential Proclamation 4313 of 16 September 1974. The evidence of record also shows that Clemency Discharges issued pursuant to Presidential Proclamation 4313 did not impact the underlying discharge a member received and Service discharge review boards and correction boards are not empowered to change the Clemency Discharge, but may review the underlying circumstances of the discharge.

3.  The evidence of record shows the applicant’s 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 voluntary, administratively correct, and in 
compliance with applicable regulations.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.
4.  The evidence of record shows the applicant completed 2 years and 9 days net active service during the period of service under review.  The evidence of record also shows numerous acts of indiscipline; a conviction by Special Court-Martial;
7 periods of AWOL; and a total of 192 days lost under Title 10, USC, section 972, throughout the period of the applicant’s military service under review.  Thus, the evidence of record confirms that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to an honorable or a general, under honorable conditions discharge.

5.  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.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080012567



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ABCMR Record of Proceedings (cont)                                         AR20080012567



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