IN THE CASE OF:	

		BOARD DATE:	 29 April 2010 

		DOCKET NUMBER:  AR20090018008 


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 (UD).

2.  The applicant states he completed alternate service under the terms of his discharge under Presidential Proclamation (PP) 4313 and is requesting the character of his service be upgraded accordingly.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) 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 and entered active duty on 30 August 1968.  His record documents no acts of valor or significant achievement.

3.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on the following three dates for the offenses indicated:

	a.  5 February 1969, for disobeying a lawful order;

	b.  18 February 1969, for failing to go to his appointed place of duty at the time prescribed; and

	c.  5 March 1969, for disobeying the lawful order of his commanding officer.

4.  On 21 May 1969, the applicant departed absent without leave (AWOL) from his advanced individual training unit at Fort Jackson, South Carolina.  He was dropped from the rolls (DFR) of the organization on 21 June 1969.

5.  On 21 November 1974, the Commander, U.S. Army Enlisted Records Center, Fort Benjamin Harrison, Indiana, notified the applicant of his eligibility under the provisions of PP 4313 which established a program for clemency for individuals who were AWOL, DFR, or who missed movement during the time frame from 4 August 1964 through 28 March 1973 and who had no offenses other than those listed.  The applicant was also informed of the following participation requirements of the program:

	a.  agree to participate in the President's program,

	b.  agree to reaffirm his allegiance to the United States, and

	c.  pledge to perform alternate service for a period not to exceed 24 months.

6.  On 30 January 1975, the applicant returned to military control for discharge processing at Fort Benjamin Harrison, Indiana.
 
7.  On 31 January 1975, the applicant completed a reaffirmation of allegiance and pledged to complete alternate service.  He also completed a voluntary request for discharge for the good of the service pursuant to PP 4313.  He confirmed that prior to completing his discharge request he had been afforded the opportunity to consult with military counsel.  He also confirmed he would receive a UD and he understood the consequences of receiving this discharge.

8.  The applicant's discharge was approved, and on 31 January 1975 he was discharged under the provisions of PP 4313 and received a UD.  The DD Form 214 he was issued at the time shows he completed 8 months and 23 days of creditable active military service and accrued 1,709 days of lost time due to AWOL.  It also verified he agreed to serve 24 months of alternate service pursuant to PP 4313.

9.  The applicant's record contains a Selective Service System letter, dated 11 July 1975.  This letter signed by the Reconciliation Service Division Manager indicates the applicant was terminated from the program because he did not complete the required period of alternate service.  It further indicates the applicant was uncooperative with efforts to place him in a job, failed to report to scheduled interviews, and failed to respond to official correspondence.

10.  PP 4313, dated 16 September 1974, announced a clemency program designed to provide deserters with an opportunity to work their way back into American society.  This proclamation pertained to all individuals who were carried administratively as deserters if their last period of AWOL was between 4 August 1964 and 28 March 1973.  Under this program, eligible enlisted deserters were offered the opportunity to request a UD for the good of the service if they agreed to perform alternate service under the supervision of the Selective Service System.

11.  Successful completion of alternate service entitled a participant to receive a Clemency Discharge Certificate.  Clemency discharges issued pursuant to PP 4313 did not impact the underlying discharge a member received and did not entitle the individual to any benefits administered by the Department of Veterans Affairs (VA).  The Army Discharge Review Board adapted the policy that a clemency discharge would be considered by a board in its deliberations, but that the discharge per se did not automatically require relief be granted.

12.  On 8 October 1977, Public Law 95-126 added 180 days of continuous absence, if it was used as the basis for an under other than honorable conditions discharge, to that list of reasons for discharge which acted as a specific bar to eligibility for benefits administered by the VA.  It also required that uniform discharge review standards be published that were applicable to all persons administratively discharged or released from active duty under other than honorable conditions.  It further required that discharges upgraded under special discharge review programs be reconsidered under the newly established uniform discharge review standards.  On 29 March 1978, these newly established uniform discharge review standards were published in Department of Defense Directive 1332-28.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention his discharge should be upgraded because he completed his alternate service requirement has been carefully considered.  However, the evidence is not sufficient to support this claim.  A Selective Service System letter in the record shows the applicant was terminated from the program based on his failure to complete the required alternate service.

2.  The applicant's discharge processing was accomplished in accordance with the applicable law.  All requirements of law were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record documents no acts of valor or significant achievement. 
However, it reveals an extensive disciplinary history that includes his acceptance of NJP on three separate occasions and his accrual of 1,709 days of time lost due to AWOL.  As a result, given the applicant's short and undistinguished record of service, even had he completed his alternate service and received a clemency discharge, it would not support an upgrade of his discharge.

4.  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)                                         AR20090018008



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090018008



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1