IN THE CASE OF:	  

		BOARD DATE:	  20 May 2010

		DOCKET NUMBER:  AR20090020157 


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 his undesirable discharge be upgraded. 

2.  The applicant states:

* he was crippled in his right leg in 1968
* he deserves a better discharge because he was in the hospital twice for his right leg 

3.  The applicant provides a copy of 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 was inducted into the Army of the United States on 
6 March 1968.  He successfully completed basic combat and advanced individual training and he was awarded military occupational specialty 63C (wheel vehicle repairman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows the following lost time:

* 13 May 1968 to 3 June 1968 - absent without leave (AWOL)
* 31 December 1968 to 1 June 1969 - AWOL
* 4 June 1969 to 15 July 1969 - confinement   

4.  The applicant went AWOL on 19 July 1969 and returned to military control on 20 January 1975.

5.  On 21 January 1975, 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 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 21 January 1975, the applicant executed a Reaffirmation of Allegiance and pledge to complete 24 months of alternate service.

7.  On 21 January 1975, the applicant underwent a separation physical examination and was found qualified for separation.  He reported he was in good health and taking no medication.  Item 37 (Lower Extremities) of his Standard Form 88 (Report of Medical Examination) shows he was rated normal.  The applicant answered "No" to the following questions on his Standard Form 93 (Report of Medical History):

* inability to perform certain motions

* inability to assume certain positions
* other medical reasons
* have you ever had any illness or injury other than those already noted?  

8.  The applicant was discharged with an undesirable discharge on 21 January 1975 for the good of the service under the provisions of PP 4313.  He had served a total of 9 months and 8 days of creditable active service with 2,218 days of lost time.

9.  On an unknown dated, the applicant was terminated from enrollment in the Reconciliation Service Program.  He did not complete his required period of alternate service.

10.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.

11.  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.

12.  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.  

13.  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.  Although the applicant contends he was crippled in his right leg, medical evidence of record shows he was found qualified for separation on 21 January 1975, his lower extremities were rated normal, and he reported he was in good health and taking no medications.

2.  The applicant's brief record of service included 2,218 days of lost time.  Apparently 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)                                         AR20090020157



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ABCMR Record of Proceedings (cont)                                         AR20090020157



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