IN THE CASE OF:	  

		BOARD DATE: 	        9 June 2009 

		DOCKET NUMBER:  AR20090002321 


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, the widow of a deceased former service member (FSM), requests that her husband's discharge be upgraded to establish pension payments.

2.  The applicant states, in effect, that there were extenuating circumstances involved in the FSM going absent without leave (AWOL).  These circumstances included stress from the Vietnam War experience, losing their first child while he was engaged in the war, and then losing everything they owned due to a house fire after he returned stateside.

3.  The applicant provides a copy of the FSM's certificate of death; DD Form 214 (Report of Separation from Active Duty); General Discharge Certificate; DD Form 215 (Correction to DD Form 214); Department of Veterans Affairs VistA Electronic Medical Documentation – Progress Notes; marriage license; and letters of support in support of this application.  

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was inducted into the Army of the United States on 28 July 1967.  He completed the required training and was awarded military occupational specialty (MOS) 11B (light weapons infantryman).  The highest grade he held during his tenure of service was sergeant (SGT)/E-5.  The FSM's records do not show any significant acts of achievement or valor during his military service.

2.  The FSM's DA Form 20 (Enlisted Qualification Record), item 31 (Foreign Service) shows he served in the Republic of Vietnam during the period 1 January 1968 through 3 January 1969.

3.  The FSM's DD Form 214 shows he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Combat Infantryman Badge, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

4.  The FSM's DA Form 20, item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date ETS) shows he was AWOL during the period from 17 through 27 March 1969, 5 through 15 May 1969, and 19 May 1969 through 14 July 1974.

5.  On 25 July 1974, the FSM was charged with one specification of being absent without leave with intent to remain permanently so, during the period from
19 May 1969 through 14 July 1974.

6.  The FSM's available records concerning his AWOL status are not complete.  However, an ADMINCEN Form 1966-5 (Reaffirmation of Allegiance and Pledge to Complete Alternate Service), dated 26 September 1974, shows he admitted to voluntarily absenting himself from his military unit without being properly authorized leave in May 1969.  He was subsequently dropped from the rolls of the Army and declared a deserter.  He was returned to military control on 15 July 1974.

7.  ADMINCEN Form 1966-3 (Enlisted Statement - Request for Discharge for the Good of the Service), dated 26 September 1974, shows the applicant voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313, 16 September 1974.  The applicant acknowledged that he understood his absence was characterized as willful and persistent unauthorized absence for which he was subject to trial by court-martial for a violation of the UCMJ and could lead to the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he was making his request of his own free will and that prior to completing the request he had been afforded the opportunity to consult with military counsel.  He acknowledged that he had been fully advised by counsel as to the nature of the offenses for which he may be tried and the maximum permissible punishment which may be imposed.  He acknowledged that he understood he would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He acknowledged that he had been advised and understood the adverse nature of 

such a discharge and the possible consequences thereof.  He acknowledged that as a result of the issuance of such a discharge, he would be deprived of all service benefits, that he would be ineligible for all benefits administered by the Veteran's Administration (VA) [now known as the Department of Veterans Affairs], and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He further acknowledged that within 15 days of receipt of the Undesirable Discharge Certificate that he must report to his State Director of Selective Service to arrange for performance of alternate service.  He further acknowledged he understood that satisfactory completion of such alternate service will be acknowledged by issuance of a Clemency Discharge Certificate.  He acknowledged, however, that such a certificate would not alter his eligibility for any benefits predicated upon his military service.

8.  Additional facts and circumstances concerning the FSM's discharge proceedings are not in the available records.  However, his DD Form 214 shows he was discharged on 26 September 1974, under the provisions of Presidential Proclamation 4313, with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate.  His DD Form 214 also indicates he had 1 year, 9 months, and 4 days of creditable service; 92 days of lost time before normal expiration of service; and 1,811 days of lost time after his normal expiration of service.

9.  The FSM applied for and was accepted for 12 months of alternate service in the President's Clemency Program.  His record contains a letter, dated 25 November 1975, indicating he had completed his alternate service and was granted a clemency discharge pursuant to Presidential Proclamation 4313.  He was given a DD Form 215 to be attached to his DD Form 214, which added a statement in item 27 (Remarks), as reads, "DD Form 1953A Clemency Discharge issued in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation No 4313."

10.  The FSM was further advised that he could apply to the Army Discharge Review Board (ADRB) for review and possible change to his discharge.  On 8 February 1978, he applied to the ADRB for an upgrade of his undesirable discharge and his records contain a letter addressed to him, dated 4 September 1979, showing his characterization of service was changed to [general] under honorable conditions under the DOD Special Discharge Review Program (SDRP).

11.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to members of the Armed Forces who were in an unauthorized absence status and certain former Soldiers who 
voluntarily entered into and completed an alternate restitution program specifically designed for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.  
Alternate service was to be performed under the supervision of the Selective Service System.  When the period of alternate service was completed satisfactorily, the Selective Service System notified the individual's former military service.  The military services issued the actual clemency discharges.  The clemency discharge is a neutral discharge, neither honorable nor less than honorable.  The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA.  Soldiers who were AWOL entered the program by returning to military control and accepting a discharge in lieu of trial by court-martial.

12.  On 4 April 1977, the DOD directed the Services to review all less than      fully honorable administrative discharges issued between 4 August 1964 and     28 March 1973.  This program, known as the SDRP, required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

13.  In October 1978, Public Law 95-126 was enacted.  This legislation denied VA benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.  The DOD was required to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

14.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  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.

16.  The applicant provided several statements in support of the FSM's situation, including his mother's request that the Board make an exception so the family can receive pension benefits.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  While the FSM received awards due to his service in Vietnam, this service was not so redeeming as to outweigh his two 11-day periods of AWOL followed by more than 5 years of unauthorized absence.  The applicant has provided no documentation of significant post-service activities that might warrant a consideration of further upgrading the FSM's discharge.

3.  While the applicant states the FSM was experiencing hardships when he was on active duty, she has not submitted any evidence to support these contentions.

4.  Under the provisions of Presidential Proclamation 4313, the FSM was required to serve 12 months of alternate service, which evidence shows he completed.  However, completing the requirements of the program provided for a Clemency Discharge, not an Honorable Discharge Certificate.

5.  The FSM was granted a clemency discharge under Presidential Proclamation 4313, which restored his civil rights but did not change the underlying discharge.  His clemency discharge, considered a "neutral" discharge, did not entitle him to any benefits administered by the VA and did not require the underlying discharge be upgraded in order to secure such benefits.
 
6.  The character of the FSM's discharge is commensurate with his overall record of military service, and there is no basis for upgrading his discharge at this late date.
7.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

8.  The Army Board for Correction of Military Records (ABCMR) does not upgrade properly issued discharges solely for the purpose of establishing eligibility for other programs or benefits.

9.  The statements made in support of the FSM's situation, including his mother's request that the Board make an exception so the family can receive pension benefits have been carefully considered.  However, the applicant has not provided any compelling evidence or convincing argument to further mitigate the FSM's serious AWOL offenses.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090002321



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ABCMR Record of Proceedings (cont)                                         AR20090002321



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