IN THE CASE OF:	

		BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090013037 


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

2.  The applicant states, in effect, that it has been 40 years since he was discharged, that he completed alternate service to satisfy his military obligation, and that he has been a law-abiding citizen since he was discharged.  

3.  The applicant provides a DD Form 214 (Report of Separation from Active Duty) and DD Form 215 (Correction to DD Form 214) 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.  The applicant's record shows he enlisted in the Regular Army on 12 August 1966.  He successfully completed basic combat training at Fort Bliss, Texas, and advanced individual training (AIT) at Fort Sam Houston, Texas. Upon completion of AIT, he was awarded military occupational specialty (MOS) 91A (Medical Corpsman).

3.  The applicant's record also shows he was advanced to private/E-2 on 
12 December 1966, and that this is the highest rank he attained while serving on active duty.  He was also reduced to private/E-1, which is the rank he held at the time of his discharge, on 26 November 1968.  It also shows he earned the National Defense Service Medal.  His record documents no acts of valor or significant achievement. 

4.  The applicant's disciplinary history includes accrual of approximately 412 days of time lost due to three separate absent without leave (AWOL) periods and three separate periods of confinement.  It also includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 14 July 1967, and includes four separate special court martial (SPCM) convictions on 13 April 1967, 10 August 1967, 25 March 1968, and 22 September 1968, respectively.

5.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  The record does contain a properly constituted DD Form 214 that identifies the authority and reason for the applicant's discharge.  It also contains an OSA Form 172A (Review of Discharge or Separation) completed by the Army Discharge Review Board (ADRB) on 21 September 1971.  This document confirms the applicant was properly notified of the separation action by his unit commander, was advised of his rights in connection with the action, and waived his right to have his case considered by a board of officers and his right to counsel, and that he elected not to submit a statement in his own behalf during his separation processing.  It also shows the proper separation authority approved the applicant's discharge and directed he receive a UD on 26 November 1968.  

6.  The DD Form 214 on file confirms the applicant was discharged on 
26 November 1968.  It further confirms he was separated under the provisions of Army Regulation 635-212, by reason of unfitness.  It also shows he completed a total of 1 year, 2 months, and 1 day of creditable active military service and that he received a UD.  


7.  On 21 September 1971, the ADRB, after careful consideration of all evidence submitted in support of his request and the applicant's entire service record, determined his discharge was proper and equitable.  The applicant's petition for an upgrade of his discharge was denied. 

8.  On 4 January 1977, the applicant was issued a DD Form 1953A (Clemency Discharge) in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation 4313.  

9.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and 
(6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  The separation authority could authorize a GD or honorable discharge (HD) if warranted by the member's record of service; however, when separation for unfitness was warranted, a UD was normally considered appropriate.

10.  In Presidential Proclamation 4313 (PP 4313), dated 16 September 1974, the President announced a clemency program designed to provide deserters an opportunity to work their way back into American society.  This proclamation pertained to all individuals who were carried administratively as deserters if their last period of AWOL was between 4 August 1964 and 28 March 1973.  Under this program, eligible enlisted deserters were offered the opportunity to request an undesirable discharge for the good of the service if they agreed to perform alternate service under the supervision of the Selective Service System.  Successful completion of alternate service entitled a participant to receive a Clemency Discharge Certificate.  Clemency Discharges issued pursuant to      PP 4313 did not impact the underlying discharge a member received and did not entitle the individual to any benefits administered by the Department of Veterans Affairs.  The Army Discharge Review Board adapted the policy that a Clemency Discharge would be considered by a board in its deliberations but that the discharge per se did not automatically require relief be granted.  


11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a provides that an HD 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.

12.  Paragraph 3-7b of the same regulation provides that a GD 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's contention that his discharge should be upgraded based on the fact he has been a law-abiding citizen during the 40 years that have passed since his discharge, and that he completed an alternate service program, was carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief. 

2.  The applicant's record documents no acts of valor or significant achievement and reveals an extensive disciplinary history that includes his acceptance of NJP and four separate SPCM convictions.  In addition, the record shows he accrued 412 days of time lost due to three separate periods of AWOL and three separate periods of confinement.  As a result, the UD he received accurately reflects the overall quality of his service, which did not support the issue of a GD or HD at the time of his discharge, and it does not support an upgrade at this time.  

3.  Although the applicant's record is void of a complete separation packet containing all the facts and circumstances surrounding his discharge processing, the record does include a properly-constituted DD Form 214 that identifies the authority and reason for his discharge and carries with it a presumption of Government regularity in the discharge process.  The record also contains an OSA Form 172A that confirms his separation processing was accomplished in accordance with the applicable regulation and that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  


4.  Further, given this extensive disciplinary history, the fact he completed alternate service and received a clemency discharge under the provisions of PP 4313 is still not sufficiently mitigating to support an upgrade of his discharge at this late date.  

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090013037



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ABCMR Record of Proceedings (cont)                                         AR20090013037



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