IN THE CASE OF:	

		BOARD DATE:	  20 April 2010

		DOCKET NUMBER:  AR20090015079 


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 (UD) to an honorable discharge.  In addition, he requests that the authority and reason on his DD Form 214 (Report of Separation from Active Duty) be changed to only reflect separation program designator (SPD) KNL and the reentry eligibility (RE) code be changed to from RE-4 to RE-1.

2.  The applicant states, in effect, he was generally a good Soldier prior to going absent without leave (AWOL).  Before his misconduct, he was assigned to the 71st Evacuation Hospital in Vietnam.  While in Vietnam, he dealt with all types of wounded Soldiers that greatly affected his mental health.  After he returned from Vietnam, he started to have nightmares about what he had seen during the war and its effect.  The applicant states that he never discussed his mental problems with anyone at that time and it began to take a toll on him.  His ability to serve was impaired by his experiences in Vietnam.

3.  The applicant states that in February 1969, he went on leave with only three months left in the service and made the mistake of not returning.  When he returned to military control in November 1974, he agreed to alternate service for 12 months as part of his discharge.  After he completed his alternate service, he was granted a clemency discharge.

4.  The applicant provides an undated self-authored statement; a DD Form 214 for the period ending 21 September 1974; a DD Form 215 (Correction to
DD Form 214), dated 6 November 1975; and a Clemency Discharge certificate, dated 21 September 1974.
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 2 June 1967.  He successfully completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 91A (Medical Corpsman).  He was later awarded MOS 71G (Medical Records Specialist).

3.  On 10 November 1967, the applicant arrived in Vietnam and he was assigned to the 71st Evacuation Hospital where he performed duties as a litter bearer and an admissions and disposition clerk.  He departed Vietnam on 10 November 1968 and he was assigned to Brooke Army Medical Center, Fort Sam Houston, TX.

4.  The applicant's DD Form 214 shows he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), two overseas service bars, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

5.  The applicant's available records concerning his AWOL status are incomplete. However, an ADMINCEN Form 1966-5 (Reaffirmation of Allegiance and Pledge to Complete Alternate Service) shows he admitted to voluntarily absenting himself from his military unit without being properly authorized on 25 February 1969.  He was subsequently dropped from the rolls of the Army as a deserter.  Headquarters, Fort Sheridan, IL, Special Orders Number 183, dated
19 September 1974, show he was returned to military control at Fort Sheridan, effective 17 September 1974.

6.  ADMINCEN Form 1966-3 (Enlisted Statement - Request for Discharge for the Good of the Service), dated 21 September 1974, shows the applicant voluntarily requested discharge for the good of the service pursuant to the provisions of 

Presidential Proclamation Number 4313, dated 16 September 1974.  The 
applicant acknowledged that he understood that his absence was characterized as willful and persistent unauthorized absence for which he was subject to trial by court-martial for a violation of the Uniform Code of Military Justice (UCMJ) and could lead to the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he was making his request of his own free will and that prior to completing the request he had been afforded the opportunity to consult with military counsel.  He acknowledged that he had been fully advised by counsel as to the nature of the offenses for which he may be tried and the maximum permissible punishment which may be imposed.  He acknowledged that he understood he would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He acknowledged that he had been advised and understood the adverse nature of such a discharge and the possible consequences thereof.  He acknowledged that as a result of the issuance of such a discharge, he would be deprived of all service benefits, that he would be ineligible for all benefits administered by the Veteran's Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He further acknowledged that within 15 days of receipt of the Undesirable Discharge Certificate that he must report to his State Director of Selective Service to arrange for performance of alternate service.  He further acknowledged he understood that satisfactory completion of such alternate service will be acknowledged by issuance of a Clemency Discharge Certificate.  He acknowledged, however, that such a certificate would not alter his eligibility for any benefits predicated upon his military service.

7.  Additional facts and circumstances concerning the applicant's discharge proceedings are not in the available records.  However, his DD Form 214 shows he was discharged on 21 September 1975, under the provisions of Presidential Proclamation 4313, dated 16 September 1974, under other than honorable conditions with issuance of an Undesirable Discharge Certificate.  His DD Form 214 also indicates he had 1 year, 8 months, and 28 days of creditable service;
97 days of lost time before normal expiration of service; and 2,256 days of lost time after his normal expiration of service.  Item 9c (Authority and Reason) of the applicant's DD Form 214 shows Presidential Proclamation and Department of Defense Memorandum, SPD "KNL."  Item 10 (Reenlistment Code) shows the entry "RE-4."

8.  The applicant applied for and was accepted for 12 months of alternate service in the President's Clemency Program.  He received a certificate of completion of the prescribed Reconciliation Service, dated 6 November 1975.


9.  The applicant's record contains a letter, dated 8 December 1975, indicating the applicant had completed his alternate service pursuant to Presidential Proclamation 4313, dated 16 September 1974.  It shows that he was granted a clemency discharge pursuant to Presidential Proclamation 4313, dated
16 September 1974.  He was issued a DD Form 215 that added to item 27 of his DD Form 214 the entry, "DD Form 1953A Clemency Discharge issued in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation No 4313."

10.  The applicant was further advised that he could apply to the Army Discharge Review Board (ADRB) for review and possible upgrade of his discharge.  However, there is no evidence that the applicant applied to the ADRB to upgrade his discharge.

11.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to members of the Armed Forces who were in an unauthorized absence status and certain former Soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former Soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973.  Alternate service was to be performed under the supervision of the Selective Service System.  When the period of alternate service was completed satisfactorily, the Selective Service System notified the individual's former military service.  The military services issued the actual clemency discharges.  The clemency discharge is a neutral discharge, neither honorable nor less than honorable.  The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration.  Soldiers who were AWOL entered the program by returning to military control and accepting a discharge for the good of the service - in lieu of trial by court-martial.

12.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  It states, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-1 included a list of the Regular Army RE codes:

* RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.
* RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.

* RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

13.  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.

14.  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.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  While the applicant received several awards primarily due to his service in Vietnam, this service was not so redeeming as to outweigh his approximately 2,392 days of time lost.  Under the provisions of Presidential Proclamation 4313, the applicant was required to serve up to 12 months of alternate service, which evidence shows he completed.  However, completing the requirements of the program provided for a Clemency Discharge, not a General Under Honorable Conditions or an Honorable Discharge Certificate.

3.  The applicant was granted a clemency discharge under Presidential Proclamation 4313, which restored his civil rights but did not change the underlying discharge.  His clemency discharge, considered a "neutral" discharge, did not entitle him to any benefits administered by the VA and did not require the underlying discharge be upgraded in order to secure such benefits.

4.  The character of the applicant's discharge is commensurate with his overall record of military service, and there is no justification for upgrading his discharge. In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

5.  The applicant has not provided any compelling evidence or convincing argument to further mitigate his serious AWOL offenses.  In view of the foregoing, there is no basis for granting the applicant's request.

6.  The evidence of record confirms the applicant’s narrative reason for separation and his SPD code were assigned based on his return to military control and acceptance of a discharge for the good of the service in lieu of trial by court-martial.  He was subsequently discharged under the provisions of Presidential Proclamation 4313.  The underlying reason for his discharge was his lengthy AWOL.  The only valid authority and reason for separation permitted at the time was Presidential Proclamation 4313 and it appears the appropriate SPD code associated with this discharge was "KNL."

7.  The applicant contends that his assigned RE-code of 4 should be upgraded. 
The available evidence confirms the applicant’s was separated due to Presidential Proclamation 4313 by reason of for the good of the service - in lieu of court-martial.  By DOD memorandum he was assigned an SPD code of KNL.  Lacking independent evidence to the contrary, there is a presumption of administrative regularity.  Army regulations in effect at the time of the applicant's discharge and now require that Soldiers discharged for the good of the service – in lieu of court martial will be issued an RE code of 4.  Therefore, it appears he was appropriately assigned RE code of 4 at the time of his discharge.

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)                                         AR20090015079



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ABCMR Record of Proceedings (cont)                                         AR20090015079



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