IN THE CASE OF:	  

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090017557 


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 an honorable discharge (HD).

2.  The applicant states, in effect, that President Nixon in 1972 granted all Vietnam veterans amnesty; however, veterans had to apply for the change.

3.  The applicant provides no documentary evidence 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 that he enlisted in the Regular Army on 21 May 1970.  He was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was private pay grade E-2.

3.  On 19 February 1971, the applicant received nonjudicial punishment for being absent without leave (AWOL) from 12 to 16 February 1971.  His imposed punishment was a forfeiture of $19.00 pay and a reduction to pay grade E-1.

4.  The applicant’s DA Form 20 (Enlisted Qualification Record), Item 31 (Foreign Service) shows the applicant served in Vietnam for 3 months, from 25 February to 16 May 1971.  The DA Form 20 also shows in Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date ETS) that the applicant was AWOL from 26 June to 27 July 1971 and from 28 July 1971 to 
19 January 1972.

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 (Certificate of Release or Discharge from Active Duty) which shows the applicant was separated under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), for the good of the service on 22 February 1972 and that he received a UD.  It further shows that at the time he had completed a total of 1 year, 3 months, and 6 days of creditable active military service and he had accrued 285 days of lost time due to being AWOL.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A UD would normally be furnished an individual who was discharged for the good of the Service.  




7.  Army Regulation 635-200 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

8.  Army Regulation 635-200 paragraph 3-7b 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.

9.  Presidential Proclamation 4313, (PP 4313) issued by President Ford and affects three groups of individuals.  These groups were:  (1)  Fugitives from justice who were draft evaders.  (2)  Members of the Armed Forces who were in an unauthorized absence status and (3)  Prior members of the Armed Forces who had been discharged with a punitive or undesirable discharge for violation of Article 85, 86 or 87 of the UCMJ.  The individuals in the first group, since they were purely civilian, are of no interest insofar as a discharge review is concerned. The individuals who were absent from the Armed Forces were afforded an opportunity to return to military control and elect either an undesirable discharge under PP 4313 or 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 Veterans Administration.

10.  An individual had to apply for consideration by the Department of Defense Special Discharge Review Program (SDRP); however, the program expired on 
4 October 1977.

11. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.




DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were considered; however, they are not supported by either the evidence submitted with the application or the evidence of record.  It appears the applicant acknowledges that he had to apply for an SDRP upgrade, and there is no evidence that he applied.  This program expired in 1977.

2.  Although the available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant's final discharge processing it does include a properly-constituted DD Form 214 that identifies the reason and characterization for the applicant's final discharge.  The applicant's DD Form 214 confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of service.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process, it does not appear that his UD was severe.  

3.  Therefore the type of discharge directed and the reasons were appropriate considering all the facts of the case.

4.  In view of the foregoing, there is no basis for granting the applicant’s request. 

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)                                         AR20090017557



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ABCMR Record of Proceedings (cont)                                         AR20090017557



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