BOARD DATE:	  6 October 2009

		DOCKET NUMBER:  AR20090008319 


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 an upgrade of his under other than honorable conditions discharge to a fully honorable discharge.

2.  The applicant states that he needs his discharge upgraded so he may qualify for medical and any other benefits.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), dated 4 October 1974, in support of his request.

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 records show he enlisted in the Regular Army for a period of 3 years on 16 January 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty 94A (Cook).  The highest rank/grade he attained during his military service was private first class/E-3.

3.  On 2 June 1967, the applicant pleaded guilty at a special court-martial to one specification of being absent without leave (AWOL) during the period 4 April 1967 through 2 May 1967.  The court sentenced him to confinement at hard labor for 6 months and a forfeiture of $64.00 pay for 6 months.  The sentence was adjudged on 2 June 1967.

4.  On 5 July 1967, the convening authority approved a reduced sentence of confinement at hard labor for 6 months, 3 months of which was suspended for 3 months, and a forfeiture of $30.00 pay per month for 3 months.

5.  The facts and circumstances concerning the applicant’s separation process are not available for review with this case.  However, it appears that on or prior to 4 October 1974, by letter from the U.S. Army Enlisted Records Center, Fort Benjamin Harrison, IN, the applicant was notified that he was eligible to participate in the program established by Presidential Proclamation 4313, dated 16 September 1974.  He was advised that in order to participate in the program he must agree to participate in the President’s Program, agree to reaffirm his allegiance to the United States, and pledge to perform alternate service for a period not to exceed 24 months (this portion of the program was administered by the Selective Service System and entailed performance of work in jobs that promoted the National health, safety, or interest).  He was afforded the opportunity to consult with a military lawyer or other counsel prior to undertaking the obligations.  He was also required to physically present himself at Fort Benjamin Harrison, IN.

6.  The applicant’s records contain a letter, dated 4 October 1974, which indicates he had indeed requested to participate in the program established by Presidential Proclamation 4313.  A review of his records indicated that he was eligible for this program and he was advised to arrive at Fort Benjamin Harrison, IN, on a specific date and that upon reporting to Fort Benjamin Harrison, IN, he would be given the opportunity to request a discharge for the good of the service in accordance with existing Department of Defense regulations.  He was advised of his rights.  The letter indicates that Presidential Proclamation 4313 further provided that those servicemen who satisfactorily completed an assigned period of alternate service of not more than 24 months would be issued a Clemency Discharge Certificate.

7.  The applicant's records also show that on 4 October 1974, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial pursuant to the provisions of Presidential Proclamation Number 4313.

8.  In his request for discharge, the applicant indicated that he acknowledged he understood that his absence was characterized as a willful and persistent unauthorized absence which rendered him triable under the UCMJ and could lead to the imposition of a bad conduct discharge.  He further acknowledged that 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

9.  On 4 October 1974, the U.S. Army Administration Center and Fort Benjamin Harrison, Fort Benjamin Harrison, IN, published Special Orders Number 203 directing the applicant's discharge from the Army.

10.  The applicant's records contain a properly-constituted DD Form 214 that shows he was discharged on 4 October 1974, for the good of the service by reason of willful and persistent unauthorized absence pursuant to Presidential Proclamation 4313 with a character of service of under other than honorable conditions.  This form also shows he completed 11 months and 27 days of creditable active service.  He also had 732 days of lost time prior to the expiration of his term of service (ETS) and 1,718 days of lost time after his ETS due to AWOL.

11.  There is no indication in the applicant's records that shows he completed his alternate service pursuant to Presidential Proclamation 4313.  Accordingly, he was never issued a DD Form 215 (Correction to DD Form 214) amending his DD Form 214 to add his clemency discharge in recognition of satisfactory completion of alternate service pursuant Presidential Proclamation 4313.

12.  There is no evidence of record which indicates he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

13.  On 16 September 1974, President Gerald Ford issued Presidential Proclamation 4313.  This Proclamation provided an opportunity for deserters to work their way back into American society.  Three categories of service members were eligible beneficiaries of Proclamation 4313 to include members of the Armed Forces who were in an unauthorized absence status.  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 they completed the alternate service satisfactorily, they would be entitled to receive a clemency discharge.  the clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Department of Veterans Affairs.

14.  A Presidential memorandum was issued by President Ford on 19 January 1977 (sometimes referred to as the Presidential Proclamation 4313 Extension).  This memorandum mandated the issuance of a general discharge to individuals who had:  (1) applied for consideration under Presidential Proclamation 4313; (2) been wounded in action or decorated for valor; and (3) records free of any compelling reason to deny relief.  This was a mandate to the ADRB from the President and was to be applied by the ADRB without any applications from the affected individuals.  Whether the individuals had performed alternate service was not an issue to be considered.

15.  The Department of the Army Special Discharge Review Program (SDRP) was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program."  It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary.  The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case.  An individual who had received a punitive discharge was not eligible for consideration under the SDRP.  Absentees who returned to military control under the program were eligible for consideration after they were processed for separation.  Eligibility for the program was restricted to individuals discharged between 9 August 1964 and 28 March 1973, inclusive, with an undesirable, under other than honorable conditions, or a general discharge.

16.  Army Regulation 635-200 (Personnel Separations), 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.

17.  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 applicant contends that his discharge should be upgraded.

2.  The evidence of record confirms the applicant committed an offense that was punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, he voluntarily requested discharge for the good of the service pursuant to Presidential Proclamation 4313.  The record further confirms all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.

3.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  There is no evidence in the applicant's records and the applicant did not provide any evidence that shows he completed his required period of alternate service.  Additionally, the applicant's record of service was not satisfactory.  It included a conviction by a special court-martial and an extensive history of AWOL.  His record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel for an upgrade to 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 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)                                         AR20090008319



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ABCMR Record of Proceedings (cont)                                         AR20090008319



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