IN THE CASE OF:	  

		BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090010312 


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 1973 discharge under other than honorable conditions be upgraded.

2.  The applicant states that he served in Vietnam and was awarded the Purple Heart and as such warrants an upgrade of his discharge with associated benefits.  He states he is seeking the same form of amnesty that was granted to all those who chose to leave our country and believes it is unfair to deny an upgrade to his discharge.

3.  The applicant provides no additional evidence in support of his application

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.  Records available to the Board indicate the applicant enlisted in the Regular Army on 3 February 1969.  Following successful completion of training he was briefly assigned to Fort Benning, Georgia, before being reassigned to Vietnam.  In June 1969, he was advanced to pay grade E-2.

3.  Just prior to reporting to Vietnam, the applicant was absent without leave (AWOL) between 23 August 1969 and 14 September 1969.  There is no evidence in available records which indicates if the applicant was ever punished for this period of AWOL.

4.  The applicant arrived in Vietnam on 22 September 1969 where he was assigned duties as vehicle repairman.  On 23 May 1970, he was wounded as a result of hostile action and ultimately evacuated to a Naval Hospital in New York.  He was awarded the Purple Heart while at the Naval Hospital.

5.  According to an entry in item 38 (Record of Assignments) of the applicant's DA Form 20 (Enlisted Qualification Record), he was released from medical hold status on 3 August 1970 to report for duty at Fort Knox, Kentucky.  However, on 24 August 1970 he was reported as AWOL, returning to military control on 31 August 1970.  The applicant departed AWOL again on 3 September 1970, returned to military control on 5 October 1970, and departed AWOL once again on 15 October 1970.

6.  The applicant was eventually apprehended by the Federal Bureau of Investigation and returned to military control on 21 August 1973.

7.  On 23 August 1973, a DD Form 458 (Charge Sheet) was prepared charging the applicant with three specifications of AWOL.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  In doing so, he acknowledged that he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate; as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits; and that he could be ineligible for many or all benefits administered by the Veterans Administration (VA).

8.  On 29 October 1973, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued.

9.  The applicant was discharged on 26 November 1973 under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under conditions other than honorable.  He was credited with completing 1 year, 9 months, and 17 days of total active service.  He had more than 1,500 days of lost time due to being AWOL.

10.  In October 1974, the applicant was notified that the Army Discharge Review Board had denied his request to upgrade his discharge following a personal appearance hearing in June 1974.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided 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.  At that time, an under other than honorable conditions discharge was normally considered appropriate.

12.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Paragraph 3-7b of the same regulation 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.

14.  Presidential Proclamation 4313 issued on 16 September 1974 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 Uniform Code of Military Justice.  The proclamation 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.  The clemency discharge did not affect the individual's underlying discharge and did not entitle him to any VA benefits.  Rather, it restored Federal and, in most instances, State civil rights which may 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 undesirable characterization of service would be retained.

15.  The Special Discharge Review Board Program (SDRP), often referred to as the "Carter Program," was announced on 29 March 1977.  The program mandated the upgrade of administrative discharges if the applicant met specified criteria.

16.  On 4 April 1977, 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 DOD 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 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.

17.  On 8 October 1977, Public Law 95-126 provided the addition of 180 days of continuous unauthorized absence to other reasons for discharge which act as a specific bar to eligibility for VA benefits.  Such absence must have been the basis for an under other than honorable conditions discharge and is computed without regard to expiration of term of service.  It further required that uniform discharge review standards be published that were applicable to all persons administratively discharged or released from active duty under other than honorable conditions and that all discharges upgraded under the automatic criteria established under the SDRP be reconsidered under the newly-established uniform discharge review standards.

18.  Under Public Law 95-126, discharges awarded as a result of unauthorized absence in excess of 180 days make persons ineligible for receipt of VA benefits regardless of action taken by discharge review boards unless the VA determines there were "compelling circumstances" for the absences.



DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant's belief that some individuals who elected to leave the country rather than serve in the military ultimately received benefits and an honorable discharge, the fact is such individuals merely received a "clemency" discharge if they completed the required alternate service.  The clemency discharge did not entitle them to any veterans' benefits.

2.  There is no evidence and the applicant has not provided any evidence that his 1973 discharge was not conducted in accordance with laws and regulations applicable at the time.  Because the applicant was discharged in November 1973 he would not have been eligible for the SDRP announced in 1977 which was limited to individuals who were discharged as a result of AWOL between 4 August 1964 and 28 March 1973.

3.  However, notwithstanding the fact the applicant did not fall into any of the categories associated with various discharge programs following the Vietnam War, the applicant did serve honorably in Vietnam, was awarded the Purple Heart, and the sole basis for his discharge was his AWOL period following release from his medical hold status.  As such, as a matter of equity it would be appropriate to upgrade his discharge to a general discharge under honorable conditions.  His extensive period of AWOL precludes greater relief in the form of an honorable discharge.

4.  The applicant is advised, however, that the upgrade of his discharge may not entitle him to benefits administered by the VA.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION







BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  voiding the undesirable discharge now held by the applicant; and

	b.  issuing him a new DD Form 214 showing he was discharged from the service with a general under honorable conditions discharge on 26 November 1973.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge to a fully honorable discharge.



      ____________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)                                         AR20090010312



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ABCMR Record of Proceedings (cont)                                         AR20090010312



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