IN THE CASE OF:	 

		BOARD DATE:	11 August 2009    

		DOCKET NUMBER:  AR20090001431 


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 discharge be upgraded so that he may be eligible for medical care.   

2.  The applicant states, in effect, that he served in the Republic of Vietnam and then went absent without leave (AWOL) for three years. 

3.  The applicant provides in support of his application a copy of his DD Form 214 (Report of Separation from Active Duty) with a separation date of 
31 January 1975; and seven letters of recommendation from friends, family, and acquaintances stating the applicant served in the Vietnam War during a turbulent period in history and that the applicant stood up for his rights.  Each author requested, in effect, leniency and requested that the applicant's discharge be upgraded because he is an honorable man who has served his community well.  

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 personnel record shows he was inducted into the Army of the United States on 3 April 1969 for a 2-year period of service.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 11D (Armor Reconnaissance Specialist).

3.  The applicant served in the Republic of Vietnam with the 1st Infantry Division and with the 25th Infantry Division.  He was awarded two Bronze Star Medals for meritorious service in connection with military operations against a hostile force.  He also received the Army Commendation Medal and the Combat Infantryman Badge during his tour.  Records show he served in the Republic of Vietnam from on or about 10 September 1969 to 25 August 1970.  

4.  The applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on 7 August 1970 for violation of a lawful order issued by the Commanding General.

5.  The applicant's DA Form 20 (Enlisted Qualification Record), item 38 (Record of Assignments), shows that on or about 26 August 1970, the applicant departed the Republic of Vietnam en route to the Continental United States.  

6.  Permanent orders show that his date eligible for return from overseas was 31 August 1970.  These same orders show that he was authorized 30 days of chargeable leave prior to reporting to his next unit and duty station.  The gaining unit was the 3rd Armored Cavalry Regiment, Fort Lewis, WA.  His report date noted on his orders was no later than 1 October 1970. 

7.  On 7 January 1971, the commanding officer of 3rd Armored Cavalry Regiment located at Fort Lewis, WA requested information on the status of the applicant who was due to arrive at Fort Lewis on or about 1 October 1970.

8.  On 29 January 1975, the applicant reported to the Central Base Administration Center on Barksdale Air Force Base, LA as a military deserter under Presidential Proclamation Number 4313.  He requested travel orders to Fort Benjamin Harrison, IN.  The applicant was issued travel orders and he was ordered to report to the U.S. Army Clemency Point at Fort Benjamin Harrison. 



9.  On 30 January 1975, the applicant acknowledged that he had been advised by legal counsel.  The applicant elected not to have his military records reviewed for irregularities, inconsistencies, or information that would be beneficial to his case. 

10.  On 31 January 1975, the applicant voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313, dated 16 September 1974.  The applicant indicated that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate; that he would be deprived of many or all military service benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge. 

11.  Further, on 31 January 1975, the applicant acknowledged that within 
15 days of the date of receipt of his Undesirable Discharge Certificate he must report to his State Director of Selective Service to arrange his alternate service.  He stated he understood that satisfactory completion of alternative service would be acknowledged by the issuance of a Clemency Discharge Certificate and that this certificate would not alter his ineligibility for any benefits predicated upon his military service.  He elected not to provide statements on his own behalf.

12.  The applicant elected to sign a Reaffirmation of Allegiance, a Pledge of Public Service and to accept an Undesirable Discharge. 

13.  Accordingly, on 31 January 1975, the applicant was reduced to private/pay grade E-1 and discharged from the U.S. Army under the provisions of Presidential Proclamation Number 4313.  He was issued an Undesirable Discharge Certificate.  The DD Form 214 shows in item 27 (Remarks) that he had 184 days of lost time before his normal expiration term of service date and then 1,391 days of lost time after his expiration term of service date which was 
2 April 1971.

14.  On 18 July 1975, records show the applicant was terminated from the Reconciliation Service Program because he did not complete his required period of alternate service. 

15.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.
16.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973.  Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge.  Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge.  The clemency discharge did not affect the individual’s underlying discharge, and did not entitle him to any VA benefits.  Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge.  If a participant of the program failed to complete the period of alternative service the original undesirable characterization of service, would be retained.

17.  Title 10, U. S. Code, section 972 states, in pertinent part, that enlisted Soldiers are required to make up for time lost.  A Soldier who is returned to military duty after a period of being absent from his unit for more than one day without proper authority or who deserts is required to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded so that he may be eligible to receive medical benefits. 

2.  While the applicant is a decorated Veteran who served in the Republic of Vietnam, the evidence of record shows he had a history of extended AWOL exceeding 1,574 days.  He reported to military authorities, was afforded military counsel, declined to provide a personal statement, requested separation, and elected to serve in the Reconciliation Service Program.  Evidence shows he did not complete the required 8 months of alternate service.  Therefore, he lost his eligibility for a clemency discharge. 

3.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.






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)                                         AR20090001431



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090001431



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1