IN THE CASE OF:	

		BOARD DATE:	11June 2009  

		DOCKET NUMBER:  AR20090003408 


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 undesirable discharge be upgraded.

2.  The applicant states that he did his year in Vietnam, but did not qualify for an early release from active duty because he had over 6 months remaining on his induction.  He would have stayed in Vietnam for the additional 20 days if he had known that, so he believes that his not qualifying for an early release from active duty was the Army's fault.  He continues that he found it degrading to peel potatoes in the mess hall since they had no job for him at Fort Dix and he felt he should be with his wife since she was pregnant.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty).

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 records show that he was inducted into the Army of the United States for 2 years on 14 August 1968.  He was awarded the military occupational specialty of equipment storage specialist and was promoted to pay grade E-4.  He served in Vietnam from 4 April 1969 to 24 March 1970.

3.  On 29 January 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for two specifications of failing to go at the time prescribed to his appointed place of duty.

4.  On 2 June 1970, the applicant departed absent without leave (AWOL).

5.  On 2 November 1970, the applicant surrendered to military authorities.

6.  On 3 November 1970, the applicant again departed AWOL.  He remained AWOL until he was apprehended by civil authorities on 29 September 1974.

7.  The applicant was given the options of signing a Reaffirmation of Allegiance, a Pledge of Public Service, and accept an undesirable discharge; to have his case decided under military law and Army regulations; or return to active duty.  He chose the option of signing a Reaffirmation of Allegiance, a Pledge of Public Service, and accepting an undesirable discharge.

8.  On 4 October 1974, the applicant requested discharge in lieu of court-martial pursuant to the provisions of Presidential Proclamation Number 4313, dated 16 September 1974, for willful and persistent unauthorized absence.  In that request he acknowledged that he would be given an undesirable discharge and, as a result, he would be deprived of all service benefits administered by the Veterans Administration or under Federal and State law.

9.  Accordingly, on 4 October 1974 the applicant was given an Undesirable Discharge Certificate.  He had 1 year, 8 months, and 13 days of creditable active service and a total of 1,777 days of time lost due to being AWOL.

10.  On 6 May 1975, the Selective Service System sent the applicant a letter informing him that his Reconciliation Service Program had been terminated because he hadn't satisfactorily completed his alternate service.  The reason for termination was him leaving his approved job without authorization and his failure to respond to official correspondence concerning his absence.

11.  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 restitution program specifically designed for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.  Upon successful completion of the alternate service, former members would be granted a clemency discharge by the President of the United States, thus restoring his or her affected civil rights.  The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration.  Soldiers who were AWOL entered the program by returning to military control and accepting a discharge in lieu of trial by court-martial.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the 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.

13.  Army Regulation 635-200, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The issue of whether the applicant was eligible for an early release from active duty is not relevant in this case.  He was inducted for 2 years and, therefore, was required by law to serve 2 years of active duty.
2.  The applicant accepted NJP for two specifications of failing to go at the time prescribed to his appointed place of duty and he had 1,777 days of lost time due to being AWOL.  This serious misconduct certainly warranted an undesirable discharge.

3.  It is noted that the applicant failed to complete the Reconciliation Service Program he had agreed to at the time of his discharge because he terminated his approved job without authorization and failed to respond to official correspondence concerning his absence.

4.  As such, the applicant's administrative discharge was accomplished in accordance with applicable regulations in effect at the time and there is no reason to change his discharge or characterization of service.

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)                                         AR20090003408



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ABCMR Record of Proceedings (cont)                                         AR20090003408



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