IN THE CASE OF:	

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090014153 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states that he was convicted of a misdemeanor in 1968 while in the service; that he was released in 1970 and sent to the Special Processing Detachment at Fort Benning, GA; and that he received his discharge in 1974.  He contends that it has been 35 years and he wants to change his discharge to honorable so he will be eligible for benefits.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) 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 was inducted into the Army of the United States on 
21 September 1966.  He successfully completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 51D (mason).

3.  The applicant went absent without leave (AWOL) on 25 May 1967.  On 
13 March 1968, he was apprehended by civilian authorities in Georgia for larceny.  He was convicted of simple larceny and confined by civilian authorities from 13 March 1968 until he was returned to military control on 18 September 1970.

4.  On 27 December 1970, the applicant went AWOL and he returned to military control on 10 December 1974.

5.  On 11 December 1974, after consulting with counsel, the applicant submitted a request for discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313 (PP 4313), dated 16 September 1974.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He also acknowledged that he must report to his State Director of Selective Service to arrange for performance of alternate service within 15 days of the date of receipt 
of the Undesirable Discharge Certificate.  He indicated that he understood satisfactory completion of the alternate service would be acknowledged by the issuance of a Clemency Discharge Certificate.

6.  On 11 December 1974, the applicant executed a Reaffirmation of Allegiance and Pledge to Complete Alternate Service and pledged to complete a period of 24 months alternate service.

7.  The applicant was discharged with an undesirable discharge on 11 December 1974 for the good of the service under the provisions of PP 4313.  He had served a total of 11 months and 12 days of creditable active service with 2,649 days of lost time due to AWOL and confinement.

8.  On 2 October 1975, the applicant was terminated from enrollment in the Reconciliation Service Program.  He did not complete his required period of alternate service.

9.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.

10.  PP 4313, dated 16 September 1974, was issued by President Ford and affected three groups of individuals.  One group was members of the Armed Forces who were in an unauthorized absence status.  These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under PP 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 VA.

11.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  The applicant's brief record of service included 2,649 days of lost time.  He did not complete his required period of alternate service.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

3.  Therefore, there is no basis for granting the applicant's requested relief.


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)                                         AR20090014153



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090014153



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1