IN THE CASE OF:	  

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090017339 


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 an upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states:

* he served in Korea in 1968/1969 on the DMZ [demilitarized zone] in hazardous duty
* he was honorably discharged in 1969 and he reenlisted
* he had an excellent record from 1967 to 1969
* he was very young   

3.  The applicant provides a letter, dated 28 July 1987, from a Member of Congress 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 born on 18 September 1950.  He enlisted in the Regular Army on 10 October 1967 for a period of 3 years.  He served as a duty Soldier in Korea and was honorably discharged on 22 May 1969 for immediate reenlistment.  He reenlisted on 24 May 1969 for a period of 4 years.  

3.  On 27 June 1969, nonjudicial punishment was imposed against the applicant for disobeying a lawful command.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

4.  The applicant's inclusive dates of being absent without leave (AWOL) are not available.  The available records do not contain a DA Form 20 (Enlisted Qualification Record).  His DD Form 214 (Report of Separation from Active Duty) shows he had 1,937 days of lost time.

5.  On 28 October 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 28 October 1974, the applicant executed a Reaffirmation of Allegiance and Pledge to Complete Alternate Service and pledged to complete a period of 21 months alternate service.

7.  The applicant was discharged with an undesirable discharge on 28 October 1974 for the good of the service under the provisions of PP 4313.  He had served a total of 1 year, 8 months, and 22 days of creditable active service with 1,937 days of lost time.

8.  On 17 July 1975, the applicant was terminated from enrollment in the Reconciliation Service Program.  He did not complete his required period of alternate service.

9.  On 12 August 1982, the Army Discharge Review Board denied the applicant's request for an honorable discharge.

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.  

12.  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.  Age is not a sufficiently mitigating factor.  Although the applicant was 17 years old when he enlisted, apparently he completed his training.  In addition, he completed over 19 months of service prior to reenlisting in May 1969.

2.  The applicant's prior honorable service and his service in Korea were considered; however, his last enlistment included one nonjudicial punishment and 1,937 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 a general discharge or honorable 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)                                         AR20090017339



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ABCMR Record of Proceedings (cont)                                         AR20090017339



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