IN THE CASE OF:	  

		BOARD DATE:	       12 November 2008

		DOCKET NUMBER:  AR20080013888 


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 an upgrade of his bad conduct [sic] (undesirable) discharge.

2.  The applicant states that prior to his discharge, he served 10 months in Vietnam and suffered a severe accident and was subsequently hospitalized for 6 months.  Upon his release from the hospital, he was supposed to serve 2 months, but went absent without leave (AWOL) because of his disability.  He also adds that he is in need of medical benefits.

3.  The applicant did not provide any additional documentary evidence 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 records show that he was inducted into the Army of the United States on 13 June 1967.  He completed basic combat and advanced individual training (AIT) and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained during his military service was private first class/E-3.

3.  On 23 October 1967, the applicant departed his AIT unit in an AWOL status and returned to his unit on 30 October 1967.

4.  On 13 November 1967, the applicant pled guilty at a Special Court-Martial for one specification of being AWOL during the period on or about 23 October 1967 through on or about 31 October 1967.  The Court sentenced him to reduction to private/E-1, forfeiture of $30.00 pay per month for 4 months, and confinement at hard labor for 4 months.  The sentence was adjudged and approved on 13 November 1967.

5.  Fifth Advanced Individual Training Brigade, U.S. Army Training Center, Infantry, Fort Polk, Louisiana, Court-Martial orders Number 209, dated 5 December 1967, shows the unexecuted portions of the sentence to confinement at hard labor for 4 months and forfeiture of $30.00 for 4 months, was suspended for 3 months.

6.  On 5 December 1967, the applicant arrived in the Republic of Vietnam and was assigned to Company C, 1st Battalion, 6th Infantry, 198th Infantry Brigade.  However, on 31 May 1968, he departed Vietnam in a patient status and was transferred to the U.S. Naval Hospital, Long Island, New York, where he remained until 6 November 1968.  He was subsequently transferred to Fort Hood, Texas.

7.  The applicant’s records show he was awarded the National Defense Service Medal, the Vietnam Campaign Medal, the Vietnam Service Medal, and the Combat Infantryman Badge.  The applicant's records do not show any significant acts of valor during his military service.

8.  Item 44 (Time Lost) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows the applicant had an extensive history of AWOL and/or confinement in addition to the aforementioned incidents, as follows:

	a.  from 4 January 1969 to 6 January 1969, 3 days of AWOL;

	b.  from 1 February 1969 to 11 April 1969, 70 days of AWOL;

	c.  from 12 April 1969 to 16 April 1969, 5 days of confinement;
	d.  from 26 April 1969 to 30 April 1969, 5 days of AWOL; and

	e.  from 31 May 1969 to 10 June 1968, 11 days of confinement.

9.  On 15 July 1969, the applicant departed his unit in an AWOL status and on 25 August 1970, he was dropped from the Army rolls.  He remained in a deserted status until he was apprehended and was returned to military control at Fort Dix, New Jersey, on 27 August 1974.

10.  On 3 September 1974, Court-Martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 15 July 1969 through on or about 27 August 1974.

11.  On 19 September 1974, the applicant requested a delay in the processing of the charges against him and elected to participate in the Presidential Program for Return of Military Deserters.

12.  The applicant's record 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 26 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 undesirable discharge, 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 Number 4313. 

13.  In his request for discharge he acknowledged his understanding that his absence was characterized as willful and persistent unauthorized absence which rendered him triable under the UCMJ and could 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 Undesirable Discharge Certificate, and that he was advised of 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 issuance of an undesirable discharge, he would be deprived of all service benefits, that he would be ineligible for all benefits administered by the Department of Veterans Affairs (DVA), 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 undesirable discharge.

14.  The applicant's record also contains a properly constituted DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 26 September 1974 for the good of the service by reason of willful and persistent unauthorized absence pursuant to Presidential Proclamation Number 4313 with a character of service of under other than honorable conditions.  This form also shows he completed a total of 1 year and 10 months of creditable active military service, and had accrued 154 days of lost time prior to the normal expiration of his term of service (ETS) and 1,867 days after ETS.  The DD Form 214 also contains an entry in item 27 (Remarks) that indicates he agreed to serve 19 months of alternate service.

15.  On 23 July 1975, the Director, Selective Service System, terminated the applicant from enrollment in the Reconciliation Service Program.  After he enrolled in this program by the Joint Clemency Processing Center, the program was explained to him and efforts were made to provide him with an opportunity to satisfactorily complete his alternate service.  However, the applicant was non-cooperative with efforts to place him on an approvable job and he failed to report for his scheduled interviews and respond to official correspondence.

16.  On 20 April 1977, the applicant was notified by letter that he was not eligible for consideration by the Special Discharge Review Program since his discharge did not occur during the designated period from 4 August 1964 through 28 March 1973.

17.  There is no indication in the applicant's records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that Board's 
15-year statute of limitations.

18.  In Presidential Proclamation Number 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 Presidential Proclamation Number 4313 did not impact the underlying discharge a member received and did not entitle the individual to any benefits administered by the DVA.  The Army Discharge Review Board adopted 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.

19.  The Department of Defense (DOD) Special Discharge Review Program (SDRP) was directed in a memorandum from the Secretary of Defense in 1977.  The SDRP stipulated that all former service members who received an undesirable or a general discharge during the period 4 August 1964 through 28 March 1973 were eligible for review under the SDRP.  It further indicated that individuals who received an undesirable discharge during the Vietnam 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 Southeast Asia (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 from a previous tour of military service.

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

21.  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 DOD Directive 1332-28.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded based on a severe accident he sustained during his 10-month service in the Republic of Vietnam 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 Presidential Proclamation Number 4313 based on his willful and persistent unauthorized absence, which he completed after consulting with legal counsel and being advised of the impact of an undesirable discharge.

2.  The applicant's record contains a DD Form 214 that confirms the basis for his discharge and carries with it a presumption of regularity in the discharge process. 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 and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record reveals an extensive history of AWOL and a Special Court-Martial conviction.  Further, his record confirms he accrued 2,021 days of lost time due to AWOL and/or confinement.  As a result, the undesirable discharge 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.


																XXX
      _________________________
                 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)                                         AR20080013888



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080013888



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1