BOARD DATE: 14 October 2009
DOCKET NUMBER: AR20090006915
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 that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge, and that his eligibility for Department of Veterans Affairs (VA) benefits be established.
2. The applicant states that he applied for amnesty.
3. The applicant does not provide any additional documents.
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 applicants 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 applicants 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 enlisted in the Regular Army on 4 January 1962, was awarded the military occupational specialty of infantry operations and intelligence specialist, and was promoted to pay grade E-5.
3. He served continuously through two reenlistments and was promoted to pay grade E-6. He served in Vietnam as an infantryman and was awarded the Combat Infantryman Badge (CIB). He was not awarded any valorous awards or decorations.
4. On 4 April 1977, charges were preferred against the applicant for being absent without leave (AWOL) from 2 March 1971 to 1 April 1977.
5. On 6 April 1977, the applicant requested discharge in lieu of court-martial for the good of the service. In his request he stated that he had built a good business of selling used cars and wanted to "get out."
6. On 7 April 1977, the applicant signed a statement saying that "I have this date been advised of the Deserter Returnee Program . . .and decline to participate in the program at this time."
7. The applicant's request was approved by the appropriate authority. Accordingly, on 16 June 1977 the applicant was discharged UOTHC. He had a total of 9 years, 4 months, and 14 days of active service and 2,189 days of time lost.
8. 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.
9. Army Regulation 635-200 sets forth the basic authority 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 members 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.
10. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicant had 2,189 days of time lost. Such a prolonged period of AWOL is serious misconduct and certainly warranted a discharge UOTHC.
2. As such, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to an honorable discharge. In addition, since his military record was not satisfactory, he was not entitled to a general discharge.
3. There is no evidence that the applicant applied for "amnesty." However, if the applicant had accepted a clemency discharge, it would not have changed his underlying UOTHC discharge or established veterans benefits.
4. In view of the foregoing, there is no basis for granting the applicant's request.
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.
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