IN THE CASE OF:	  

		BOARD DATE:	  24 November 2009

		DOCKET NUMBER:  AR20090010339 


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 undesirable discharge (UD) be upgraded to a general under honorable conditions discharge.

2.  The applicant states that his discharge should be upgraded based on the award of a clemency discharge pursuant to Presidential Proclamation 4313, dated 16 September 1974.  He also states that he came back from Vietnam an 18-year old heroin addict.  He had gone through heroin detoxification and was medically evacuated to Fort Carson, Colorado, for further medical evaluation.  He was advised that there were no drug counseling services available and he fled back home to seek the support of his family and clergy.  At his young age and with his prior addiction history, he felt that if he stayed at Fort Carson he would surely use heroin again.  He has not used heroin since.  After returning home, he called his local Selective Service Board to register for 15 months of alternate service pursuant to Presidential Proclamation 4313.  This was on or about November 1974 to January 1975.  After receiving his Army records on 29 May 2009, he states he made extensive inquiries to local, state, and county government agencies, including Army recruiting offices and the Selective Service Board, to arrange to fulfill his alternate service obligation with no success.

3.  In support of his application, the applicant provides copies of his Standard Form 93 (Report of Medical History), his DA Form 20 (Enlisted Qualification Record), and 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 he enlisted in the Regular Army in pay grade E-1 on 15 April 1971 for 2 years.

3.  On 16 February 1972, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his unit from 27 January to on or about 15 February 1972.  His punishment included a forfeiture of $50.00 pay per month for 2 months and a reduction to pay grade E-2.  He was reduced to pay grade E-2 on 16 February 1972.

4.  The applicant served in Vietnam from 23 February 1972 to 5 August 1972.

5.  On 25 April 1972, the applicant accepted nonjudicial punishment under Article 15, UCMJ, for being found sitting in a chair, out of uniform, and reading a book while being posted on guard duty on 22 April 1972.  His punishment included a forfeiture of $40.00 pay per month for 1 month.  He did not appeal the punishment.

6.  The applicant submitted a copy of his DA Form 20 which shows in item 38 (Record of Assignments) he was placed in a patient status and assigned to the Medical Holding Detachment at Fort Carson on 15 August 1972.  He was returned to a duty status on 17 August 1972.  He also submitted a copy of his Standard Form 93, dated 16 August 1972, that shows he used heroin in Vietnam.  
7.  On 15 August 1972, the applicant was reported as absent without leave (AWOL) and was subsequently dropped from the rolls of his organization.  He was returned to military control on 6 November 1974.

8.  On 7 November 1974 after consulting with counsel, the applicant voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation 4313, dated 16 September 1974.  He acknowledged that his unauthorized absence rendered him triable under the UCMJ and could lead to the imposition of a bad conduct discharge or dishonorable discharge.  He also acknowledged that within 15 days of the date of receipt of his UD he must report to the State Director of Selective Service to arrange for the performance of alternate service.  He further acknowledged that satisfactory completion of such alternate service would be acknowledged by the issuance of a Clemency Discharge Certificate.  On the same day, the applicant reaffirmed his allegiance and pledged to complete a period of 15 months of alternate service.  He elected to submit a statement in his own behalf.

9.  In his statement, the applicant stated that he was medically evacuated from Vietnam for being addicted to heroin and flown to Fort Carson for further treatment.  When he was introduced to the Halfway House they had no interest in helping him at all.

10.  The applicant was reduced to pay grade E-1 on 7 November 1974.

11.  The applicant was discharged from active duty in pay grade E-1 on 7 November 1974 for the good of the service by reason of a willful and persistent unauthorized absence pursuant to Presidential Proclamation 4313.  His character of service was under other than honorable conditions and he was furnished a UD Certificate.  He was credited with 1 year, 4 months, and 5 days of net active service and 656 days of time lost due to AWOL.

12.  In a letter, dated 6 June 1975, the National Headquarters, Selective Service System, Washington, DC, advised the Commander, Reserve Components Personnel and Administration Center, St. Louis, Missouri, that the applicant had been terminated from enrollment in the Reconciliation Service Program as he had not completed his required period of alternate service.  The decision to terminate the applicant from active enrollment was based on his non-cooperation with efforts to place him in an approvable job.  The applicant decided to attend school and withdrew from the program.  The letter also stated that the applicant would be notified of the termination.

13.  On 11 February 1981, the Army Discharge Review Board denied the applicant's request for a change of his discharge.

14.  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 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 a UD.  Alternate Service was to be performed under the supervision of the Selective Service System.  The individual was responsible for finding a job that met the requirements of the program.  He would obtain the approval of his State Selective Service officials regarding the job and reports would be furnished periodically as to how he was performing.  When the period of alternate service was completed satisfactorily, the Selective Service System notified the individual's former military service and the military service issued the actual clemency discharge.  A clemency discharge did not restore veterans' benefits; rather, it restored Federal and in most instances, State civil rights which might 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 characterization of service, UD, would be retained.

15.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  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 will be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD to a general under honorable conditions discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.

2.  The applicant's contentions have been noted; however, they do not sufficiently support his request and do not serve as mitigation in his case.  Presidential Proclamation 4313 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.  The evidence shows that upon return from a lengthy and willful unauthorized absence, the applicant agreed to be discharged and complete alternate service.  After approximately 6 months, the applicant was terminated from the program based on his non-cooperation with efforts to place him in an approvable job.  There is also no evidence the applicant completed his alternate service pursuant to Presidential Proclamation 4313 for the issuance of a clemency discharge.

3.  It is also noted that participation and successful completion of the Clemency Program did not provide for an upgrade of an individual's discharge.  It simply restored civil rights that were otherwise lost had individuals not participated.

4.  The evidence also does not show and the applicant has not submitted evidence to mitigate his contentions.  The evidence shows his discharge proceedings were conducted in accordance with law and the provisions of Presidential Proclamation 4313 in effect at the time with no indication of procedural errors which would tend to jeopardize the applicant's rights.  He failed to complete the period of alternative service; therefore, he was provided a clemency discharge certificate and his original characterization of service was retained.

5.  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.

ABCMR Record of Proceedings (cont)                                         AR20090010339



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ABCMR Record of Proceedings (cont)                                         AR20090010339



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