IN THE CASE OF:	  

		BOARD DATE:	        16 April 2009

		DOCKET NUMBER:  AR20090001648 


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 reconsideration of his earlier request for an upgrade of his undesirable discharge to a general discharge. 

2.  The applicant states that he reviewed the Board's original decision and noticed that some parts of his military service were left out which put him at a disadvantage as to the dates and terms of his agreement to take the undesirable discharge.  Specifically, he argues that:

	a.  the Army was forced on him by a judge; he did not volunteer to serve;

	b.  he was told that he could request an upgrade of his discharge at any time; 

	c.  he remembers serving in the stockade, but did not do hard labor; 

	d.  there is no record of his service at Fort Sam Houston, TX, as a medical records specialist.  While there, he got into a small brawl at a hotel in San Antonio and had to make restitution after he threw a TV out of the window of the 20th floor.  As a punishment, his chain of command changed his orders to report to Vietnam; 

	e.  he was repeatedly told by his commander and other officials prior to going to the Republic of Vietnam that he would receive his eyeglasses; but, he never did.  He felt that he was being sent to a hostile territory without the ability to see as a punishment and that he would be assigned to do crowd control without his glasses.  That is why he went in an absent without leave (AWOL) status.  His father ultimately sent him money for an airline ticket to return home.  However, he would not have gone AWOL in the first place had the Army given him the promised glasses; and

	f.  it is evident that there were several convenient holes in the Board's original decision.  The fact of the matter is that he was told he could get his discharge upgraded to a general discharge and that he was promised this in a letter from President Johnson to him. 

3.  The applicant provides an undated self-authored statement in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070009840, on 3 January 2008.

2.  The applicant submitted a self-authored statement highlighting a new argument which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's records show he enlisted in the Regular Army for a period of 3 years on 27 July 1971.  Item 57 (Oath of Enlistment) of his DD Form 4 (Enlistment Contract-Armed Forces of the United States) shows the entry "I do hereby acknowledge to have voluntarily enlisted under the conditions prescribed by law this 27th day of July 1972 in the U.S. Army for a period of 3 years."  He authenticated this form by placing his signature in the appropriate place.  

4.  The applicant's records further show he completed basic combat and advanced individual training at Fort Jackson, SC, and was awarded military occupational specialty (MOS) 71B (Clerk Typist).

5.  On 12 October 1971, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice, (UCMJ), for being AWOL during the period from on or about 4 October 1971 through on or about 11 October 1971.  His punishment consisted of a forfeiture of $65.00 per month for 2 months and extra duty for 30 days.  The forfeiture of $65.00 pay per months for 1 month was suspended for 60 days.

6.  On 21 December 1971, the applicant departed Fort Jackson, SC, enroute to Fort Sam Houston, TX, to attend training for MOS 71G (Medical Records Specialist).  

7.  On 26 March 1972, the applicant departed his unit in an AWOL status and was subsequently dropped from the Army rolls on 24 April 1972.  He was apprehended by civil authorities and was returned to military control on 30 May 1972.

8.  On 1 July 1972, the applicant was convicted by a Special Court-Martial of one specification of being AWOL during the period from on or about 26 March 1972 to on or about 30 May 1972.  The Court sentenced him to hard labor without confinement for 60 days and a forfeiture of $190.00 pay per month for 2 months. The sentence was adjudged on 1 July 1972 and was approved on 18 July 1972.

9.  On 5 July 1972, the applicant was again reported AWOL and was dropped from the rolls of his organization.  He surrendered to military authorities on 5 August 1972 and was returned to duty.

10.  On 25 August 1972, court-martial charges were preferred against the applicant by the Commander, Special Processing Company, Fort Knox, KY, for one specification of being AWOL from on or about 5 July 1972 to on or about 5 August 1972.  

11.  On 28 August 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ; of the possible effects of an under other than honorable conditions discharge; and of the procedures and rights that were available to him.  Following consultation with legal counsel, he voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

12.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or a dishonorable discharge.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

13.  In his statement, the applicant stated that under the circumstances it would be to his benefit and also the Army's benefits that he be discharged.  He had a very large amount of family problems, his father had been disabled for a long time and as the oldest son, he was looked to as the head of the family on certain occasions.  He also stated that his uncle, who is very dear to him, had developed a malignant cancer.  He could be a very big support to his uncle, morale and work wise.  He had weighted the Army's needs for him against his family's, so naturally his family needed him more.  He further stated there were many men who could take his place in the Army, but there was no one who could take his place at home.  If the Army kept him, he would go AWOL again and again.

14.  On 29 August 1972, the Commander, Special Processing Company, Fort Knox, recommended approval of the applicant's request and stated that based on the applicant's previous record, punishment could be expected to have minimal rehabilitative effect and the total lack of any ultimate benefit to the Army or society accomplished by punishment would seem to justify the granting of the request to be discharged.  There did not appear to be any reasonable ground to believe that the individual was, at the time of his misconduct, mentally defective, deranged, or abnormal.  The commander recommended an Undesirable Discharge Certificate be issued.

15.  On 31 August 1972, the separation authority approved the applicant's request for discharge for the good of the service, in accordance with chapter 10 of Army Regulation 635-200, and directed he receive an Undesirable Discharge Certificate and be reduced to private/E-1.  Accordingly, the applicant was discharged on 11 September 1972.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged for the good of the service, under the provisions of chapter 10 of Army Regulation 635-200 with a character of service of under other than honorable conditions.  This form further shows he completed 10 months and 4 days of creditable military service and had 103 days of lost time due to AWOL.

16.  On 11 August 1986, the Army Discharge Review Board denied the applicant's petition to upgrade the characterization and/or the reason for his discharge.

17.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service, in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant’s separation the regulation provided for the issuance of an Undesirable Discharge Certificate.

18.  AR 635-200, chapter 3-7b, also 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.

19.  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.  A clemency discharge did not restore veterans benefit; rather, it restored federal and, in most instances state civil rights which might 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 characterization of service, undesirable, would be retained.

20.  Presidential Proclamation 4313 was issued by President Ford and affected three groups of individuals.  These groups were: (1) fugitives from justice who were draft-evaders; (2) members of the Armed Forces who were in an unauthorized absence status; and (3) prior members of the Armed Forces who had been discharged with a punitive or discharge for violation of Articles 85, 86, or 87 of the UCMJ.  The individuals who were absent from the Armed Forces were afforded an opportunity to return to military control and elect either an undesirable discharge under Presidential Proclamation 4313 or to stand trial for their offenses and take whatever punishment resulted.  For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform.  If the individuals completed the service satisfactorily, they would be entitled to receive a Clemency Discharge.  The third group could apply to the Presidential Clemency Board which was made up of individuals appointed by the President (members were civilians, retired military and members of the Reserve Components) who would make a similar determination regarding the performance of alternate service.  Both the Joint Board and Presidential Board were authorized to award a Clemency Discharge with the performance of alternate service.  In practice, the Joint Board did not take such action while the Presidential Board did in many cases.  The dates of eligibility for consideration under Presidential Proclamation 4313 for those already discharged from the military service were 4 August 1964 to 28 March 1973 inclusive.  Alternate Service was to be performed under the supervision of the Selective Service System.  The individual was responsible for finding a job that met the requirements of the program.  He would obtain the approval of his state Selective Service officials regarding the job and reports would be furnished periodically as to how he was performing.  When the period of alternate service was completed satisfactorily, the Selective Service System notified the individual’s former military service.  The military service issued the actual Clemency Discharge.  The Clemency Discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his earlier request for an upgrade of his undesirable discharge to a general discharge should be reconsidered.

2.  With respect to the applicant's eye-glasses, there is no evidence that he was deprived of eyeglasses or that the applicant's lack of eyeglasses caused him to go AWOL.  Furthermore, there were many other ways the applicant could have resolved his alleged eyeglasses issue had he chosen to use them.

3.  With respect's to the applicant's enlistment, the evidence of record shows that the applicant acknowledged to have voluntarily enlisted under the conditions prescribed by law on 27 July 1971 for a period of 3 years.  There is no evidence that he was forced into enlistment.  

4.  With respect to the applicant's confinement, the evidence of record shows that he was convicted by a Special Court-Martial that was adjudged on 1 July 1972 and sentenced him to hard labor without confinement for 60 days and a forfeiture of $190.00 pay per month for 2 months.  The Board's previous decision only addressed the adjudged and approved sentence; it did not address the actual conditions of his confinement. 

5.  With respect to a promise by President Johnson that his discharge would be upgraded, there is no evidence in the available records that he was offered the opportunity to receive an amnesty discharge.  There is also no evidence the applicant completed any alternate service pursuant to Presidential Proclamation 4313, for the issuance of a clemency discharge as specified under the program.  It is also noted that participation and successful completion of the clemency program did not provide for an upgrade of an individual’s discharge.  It simply restored rights that were otherwise lost had individuals not participated.

6.  The applicant’s records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  The records also show that he first went AWOL before he ever arrived at Fort Sam Houston.  Discharges under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant knowingly, willingly, and voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

7.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. It is believed that the reason for discharge and the characterization of service were both proper and equitable. 

8.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20070009840, dated 3 January 2008.


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      _______ _   _______   ___
               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)                                         AR20090001648





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ABCMR Record of Proceedings (cont)                                         AR20090001648



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