IN THE CASE OF:	  

		BOARD DATE:	  27 January 2009

		DOCKET NUMBER:  AR20080017114 


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 general discharge (GD) under honorable conditions be upgraded to an honorable discharge (HD).   

2.  The applicant states, in effect, that the ban of the "Carter Pardon" should be removed, and that his GD should be upgraded to an HD because he suffers from a Post Traumatic Stress Disorder (PTSD).  

3.  The applicant provides no supporting 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 record shows that he enlisted in the Regular Army and entered active duty on 30 September 1966.  He was trained in and awarded military occupational specialty (MOS) 36K (Field Wireman) and sergeant is the highest grade he attained while serving on active duty.  

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows he served in the Republic of Vietnam (RVN) from 2 January 1968 through 1 January 1969, and that during his active duty tenure, he earned the National Defense Service Medal, Vietnam Service Medal, RVN Campaign Medal, Marksman Marksmanship Qualification Badge with Rifle Bar, and 2 Overseas Service Bars. His record documents no specific acts of valor or significant achievement. 

4.  The applicant's record shows he accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 18 July 1967, for being derelict in the performance of his duties.  His punishment for this offense was 7 days of restriction and extra duty.  It also shows on 20 May 1969, he departed absent without leave (AWOL) from his unit at Fort Hood, Texas.  He was dropped from the rolls of the organization on 18 June 1969, and he remained away until 18 May 1977.  

5.  The applicant's record is void of any medical treatment records or other documents that show he suffered from a disabling physical or mental condition while serving on active duty that would have supported his separation processing through medical channels.  The record does include a Report of Medical Examination (SF 88), dated 18 May 1977, which documents the applicant’s separation physical examination.  It shows the applicant was determined to be medically qualified for separation/retention and documents no physical or mental conditions/disqualifications.  

6.  On 18 May 1977, the separation authority approved the applicant's discharge under the provisions of Chapter 15, Army Regulation 635-200, by reason of desertion, and directed the applicant receive an under other than honorable conditions (UOTHC) discharge and that he be reduced to the lowest enlisted grade.  The separation document (DD Form 214) issued to the applicant at the time shows he completed a total of 2 years, 7 months, and 19 days of creditable active military service and that he accrued 2,919 days of time lost due to AWOL/Desertion.  

7.  On 21 July 1977, the Army Discharge Review Board (ADRB) reviewed the applicant's case under the provisions of the Special Discharge Review Program (SDRP) and upgraded the applicant's UOTHC discharge to a GD; and on 11 July 1978, the ADRB affirmed its earlier SDRP decision (upgrade) under the provisions of Public Law 95-126.  

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 15, in effect at the time, provided the authority to separate members for desertion.  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 individuals 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 the RVN; received a military decoration, other than a service medal; successfully completed an assignment in Southeast (SE) Asia or in the Western Pacific in support of operations in SE Asia; completed alternate service or were excused from completion of alternate service under the clemency program instituted in 1974; or received an HD from a previous tour of military service. 

9.  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 UOTHC discharge, to that list of reasons for discharge which acted as a specific bar to eligibility for benefits administered by the VA.  The law 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 Number 1332-28.  

10.  Presidential Proclamation 4313, dated 16 September 1974, 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 began between 4 August 1964 and 28 March 1973.  Under this program, eligible enlisted deserters were offered the opportunity to request an UD 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 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 (VA). The ADRB 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.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to an HD was carefully considered.  However, there is insufficient evidence to support this claim.  Even if the applicant is now suffering from a PTSD, which is not confirmed by the evidence he provides, his military record is void of any indication that he suffered from a physically or mentally disqualifying condition while serving on active duty that would have supported his separation processing through medical channels at the time of his discharge.  

2.  The evidence of record confirms the applicant was properly processed for separation in accordance with the applicable law and regulation in effect at the time based on his extended unauthorized absence of 2,919 days.  Further, the record shows his UOTHC discharge was upgraded to a GD by the ADRB under the provisions of the SDRP based on his RVN service, and that this upgrade action was affirmed under the provisions of Public Law 95-126.  As a result, the applicant received the full clemency consideration provided for in Presidential Proclamation 4313 and there is no evidence of record or independent evidence provided by the applicant that would support a determination that a further upgrade of his discharge is warranted under these clemency provisions.  The applicant's record of misconduct clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  As a result, it would not be appropriate or serve the interest of justice and equity to grant a further upgrade of his discharge to fully honorable at this time.  

3.  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)                                         AR20080017114



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ABCMR Record of Proceedings (cont)                                         AR20080017114


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