BOARD DATE:	  8 April 2010

		DOCKET NUMBER:  AR20090017690 


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 under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states that he was given an opportunity to receive a medical discharge but chose to stay on active duty to finish his enlistment.  He was placed on assignment instructions to Germany and felt he was going to be extended beyond his enlistment commitment.  His chain of command did not work with him on this issue.  He panicked and went home in an absent without leave (AWOL) status.  He completed his required tour in Vietnam and based on the medical evidence, he asks for a reconsideration to receive the medical discharge.

3.  The applicant provides a self-authored letter, dated 16 September 2009; and two character reference letters, dated 16 and 22 September 2009.

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 records show he enlisted in the Regular Army on 11 August 1967 and held military occupational specialty (MOS) 64B (Heavy Vehicle Driver).  He served in Vietnam from on or about 11 July 1968 to on or about 8 July 1969.

3.  His records also show he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Republic of Vietnam Gallantry Cross with Palm Unit Citation, Marksman Marksmanship Qualification Badge with Rifle Bar (M-14), Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and 2 overseas service bars.

4.  On 17 May 1968, at Fort Carson, CO, he pled guilty at a special court-martial to one specification of being AWOL from on or about 2 February 1968 to on or about 2 May 1968.  The court sentenced him to confinement at hard labor for
6 months and a forfeiture of $68.00 pay per month for 6 months.  The convening authority approved his sentence on 24 May 1968 but suspended the portion of the sentence to confinement for a period of 6 months.

5.  On 14 March 1969, in Vietnam, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order by the commanding officer on or about 8 March 1969 and being drunk and disorderly in uniform in a public place on or about
8 March 1969.  His punishment consisted of a reduction to private (PV2)/E-2 (suspended for 30 days), 14 days of restriction and extra duty (7 days suspended for 30 days), and a forfeiture of $28.00 a month for one month.

6.  On 20 February 1970, at Fort Carson, he again pled guilty at a special court-martial to two specifications of being AWOL from on or about 16 July 1969 to on or about 26 August 1969 and on or about 7 October 1969 to on or about
29 January 1970.  The court sentenced him to confinement at hard labor for
4 months.  The convening authority approved his sentence on 25 February 1970. However, on 6 April 1970, the unexecuted portion of the sentence was remitted.

7.  On 5 October 1970, at Fort Wolters, TX, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from on or about 2 October 1970 to on or about 4 October 1970.  His punishment consisted of a reduction to private first class (PFC)/E-3 (suspended for 30 days) and 7 days of restriction and extra duty.

8.  On or about 10 January 1971, he departed his unit in an AWOL status and was subsequently dropped from the rolls of the Army.

9.  On 30 January 1975, he returned to military control from an AWOL status and he was reassigned to the Joint Clemency Center at Fort Benjamin Harrison, IN with a report date of 30 January 1975.

10.  On or about 2 February 1975, he received a letter stating he had requested to participate in the Presidential Proclamation Number 4313 of 16 September 1974 program.  A copy of this letter is not available for review with this case; however, the letter's guidance would have stated, in effect, that he would be given an opportunity to request a discharge for the good of the service, reaffirm his allegiance to the country, and pledge to perform alternative service for a period not to exceed 12 months.

11.  On 3 February 1975, by memorandum, he voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313, dated 1974.  He consulted with legal counsel and was advised of the nature of the offenses for which he could be tried, the maximum permissible punishment which could be imposed, the possible consequences of an undesirable discharge, the nature and effect of his pledge to perform alternative service, and of the procedures and rights available to him.  He indicated that he understood his absence was characterize as a willful and persistent unauthorized absence for which he was subject to trial by a court-martial for a violation that could have led to a bad conduct or a dishonorable discharge and that he was making this request of his own free will and had not been subjected to any coercion whatsoever by anyone.

12.  He also acknowledged that he was advised 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 Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

13.  He further acknowledged that he would report to his State Director of Selective Service to coordinate his alternative service work program and that he understood that upon satisfactory completion of an alternative service program, he would receive a Clemency Discharge Certificate.  However, such certificate would not alter his ineligibility for any benefits predicated upon his military service.


14.  On 3 February 1975, he completed a reaffirmation of allegiance and a pledge to complete alternative service.  He acknowledged that around January 1971, he voluntarily absented himself from his military unit without authorization, which was in contravention of the oath taken upon entering the Nation's military service.  He recognized that his obligations as a citizen remained unfilled, and agreed to serve in an alternative service prescribed for him faithfully for a 12-month period.

15.  He was discharged on 3 February 1975 pursuant to Presidential Proclamation Number 4313 for the good of the service by reason of willful and persistent unauthorized absence.  His characterization of service was under other than honorable conditions.  Item 27 (Remarks) of the DD Form 214 shows he had 202 days of time lost before his normal expiration of term of service (ETS) and 1,484 days of time lost after his ETS.

16.  There is no indication in his records that he satisfactorily completed the 12 months of alternative service in the Reconciliation Service Program or that he was issued a DD Form 215 (Correction to DD Form 214) that shows he received a Clemency Discharge in recognition of his satisfactory completion of alternative service pursuant to Presidential Proclamation Number 4313.

17.  There is no indication in his records that he suffered from any illness, injury, or medical condition that affected his duty performance in his primary MOS or grade or that he was issued a permanent physical profile that would have warranted his entry into the Physical Disability Evaluation System (PDES).  Additionally, there is no indication that he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB) or that he was offered a medical discharge.

18.  On 10 June 1982, the Army Discharge Review Board (ADRB) denied his request to upgrade his discharge.  The ADRB determined that his discharge was proper and equitable and that his service was properly characterized.

19.  He submitted the following documents:

	a.  In his self-authored statement, dated 16 September 2009, he gives a background about himself and his upbringing.  He also describes how and why he enlisted in the Army.  He then talks about his service in Vietnam and his periods of AWOL.  He concludes that he currently has several medical conditions including an ulcer and high blood pressure.

	b.  In a character reference letter, dated 16 September 2009, his supervisor, also a retired U.S. Air Force member, comments on his driving ability and tireless support to his work as well as his family.

20.  Presidential Proclamation 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 Presidential Proclamation 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 were to 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 member to any benefits administered by the VA.

21.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) governs the policies and procedures for the separation of enlisted personnel.  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.

22.  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.  The applicant contends that his discharge should be upgraded.

2.  The evidence of record shows that subsequent to an extensive period of AWOL, the applicant was afforded the opportunity to request a discharge under the provisions of the Presidential Proclamation Number 4313, of 16 September 1974, for the good of the service.  Accordingly, he consulted with counsel and 
voluntarily, and in writing, requested separation from the Army acknowledging that he would receive a discharge under other than honorable conditions and that he would voluntarily participate in an alternative service program for 12 months.

3.  He was told his discharge would be changed to a Clemency Discharge if he performed alternative service.  He neither did so nor was he told his discharge would be upgraded to an honorable discharge if he performed alternate service.  There is no error or injustice in this scenario.

4.  There is no evidence in his records and he did not provide any evidence that shows he suffered from any illness, injury, or medical condition that affected his duty performance in his primary specialty or grade or that he was issued a permanent physical profile that would have warranted his entry into the PDES Additionally, there is no evidence that he underwent an MEB or a PEB or that he was offered a medical discharge.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights. Furthermore, his overall military service was tarnished by various types of misconduct including two instances of NJP, two instances of courts-martial and multiple instances of AWOL.  

6.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general, under honorable conditions 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)                                         AR20090017690



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