BOARD DATE:	  22 June 2010

		DOCKET NUMBER:  AR20090021242 


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, the widow of a deceased former service member (FSM), requests upgrade of her husband's discharge to establish Department of Veterans Affairs (VA) benefits.

2.  The applicant states the FSM served in Vietnam and upon his return he was not able to deal with what he saw and did in Vietnam.  She states the FSM was eventually diagnosed with post-traumatic stress disorder (PTSD) as a result of his service.  She states the FSM died of reasons that would be service-connected but was denied both burial and survivor benefits due to his character of discharge.

3.  The applicant provides the FSM's last DD Form 214 (Report of Separation from Active duty) and his Certificate of Death.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show he enlisted in the Regular Army on 21 March 1969.  He was awarded military occupational specialty (MOS) 11B (light weapons infantryman).  He reenlisted on 3 February 1970.  The highest rank/grade he held was specialist four (SP4)/E-4.

2.  The FSM's DA Form 20 (Enlisted Qualification Record), item 31 (Foreign Service) shows he served in the Republic of Vietnam during the period 27 August 1969 through 10 November 1970.

3.  The FSM's last DD Form 214 shows he was awarded the National Defense Service Medal, Vietnam Service Medal, Air Medal, Republic of Vietnam Campaign Medal with Device (1960), Republic of Vietnam Gallantry Cross with Palm Unit Citation, and two overseas service bars.

4.  The FSM's DA Form 20, item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date ETS), shows that beginning on 11 August 1970 he was absent without leave (AWOL) on six separate occasions for periods ranging from 1 to 29 days and dropped from the rolls (DFR) of the Army on one occasion for a period of 1,176 days.

5.  Records show the FSM accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on three occasions during the period 9 July 1969 to 5 January 1971 for being AWOL.

6.  On 18 January 1970, the FSM was convicted by a summary court-martial for missing movement of his company through neglect.

7.  A DA Form 268 (Report to Suspend Favorable Actions (FLAG)) shows the FSM departed AWOL on 30 March 1971 and he returned to military control on 25 June 1974.  The form further indicates that he was pending a special court-martial for this violation.

8.  An Administration Center (ADMINCEN) Form 1966-5 (Reaffirmation of Allegiance and Pledge to Complete Alternate Service), dated 18 December 1974, shows the FSM admitted to voluntarily absenting himself from his military unit without being properly authorized in March 1971.

9.  ADMINCEN Form 1966-3 (Enlisted Statement - Request for Discharge for the Good of the Service), dated 18 December 1974, shows the FSM voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313, 16 September 1974.  The FSM acknowledged that he understood his absence was characterized as willful and persistent unauthorized absence for which he was subject to trial by court-martial for a violation of the UCMJ and could lead to the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he was making his request of his own free will and that prior to completing the request he had been afforded the opportunity to consult with military counsel.  He acknowledged that he had been fully advised by counsel as to the nature of the offenses for which he may be tried and the maximum permissible punishment which may be imposed.  He acknowledged that he understood he would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He 


acknowledged that he had been advised and understood the adverse nature of such a discharge and the possible consequences thereof.  He acknowledged 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 VA, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He further acknowledged that within 15 days of receipt of the Undesirable Discharge Certificate that he must report to his State Director of Selective Service to arrange for performance of alternate service.  He further acknowledged he understood that satisfactory completion of such alternate service will be acknowledged by issuance of a Clemency Discharge Certificate.  He acknowledged, however, that such a certificate would not alter his eligibility for any benefits predicated upon his military service.

10.  The FSM's DD Form 214 shows he was discharged on 18 December 1974, under the provisions of Presidential Proclamation 4313, with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate.  His DD Form 214 also indicates he had a total of 2 years, 6 months, and 3 days of creditable active service; 697 days of time lost before normal expiration of term of service; and 509 days of time lost after his normal expiration of term of service.

11.  The FSM applied for and he was accepted for 10 months of alternate service in the President's Clemency Program.  His record contains a Selective Service System letter, dated 8 September 1976, indicating he was terminated from the Reconciliation Service Program because he did not complete his required period of alternate service.

12.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to members of the Armed Forces who were in an unauthorized absence status and certain former Soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.  Alternate service was to be performed under the supervision of the Selective Service System.  When the period of alternate service was completed satisfactorily, the Selective Service System notified the individual's former military service.  The military services issued the actual clemency discharges.  The clemency discharge is a neutral discharge, neither honorable nor less than honorable.  The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA.  Soldiers who were AWOL entered the program by returning to military control and accepting a discharge in lieu of trial by court-martial.
13.  In October 1978, Public Law 95-126 was enacted.  This legislation denied VA benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.

14.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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.  While the FSM received awards due to his service in Vietnam, this service was not so redeeming as to outweigh his six periods of AWOL followed by more than 1 year of unauthorized absence.

2.  While the applicant states the FSM was not able to deal with what he saw and did in Vietnam and was eventually diagnosed with PTSD as a result of his service she has not submitted any evidence to support these contentions.

3.  Under the provisions of Presidential Proclamation 4313, the FSM was required to serve 10 months of alternate service, which evidence shows he did not complete.

4.  The character of the FSM's discharge is commensurate with his overall record of military service and there is no basis for upgrading his discharge at this late date.

5.  The ABCMR does not upgrade properly issued discharges solely for the purpose of establishing eligibility for other programs or benefits.

6.  It is understandable that the applicant would like to receive VA burial and survivor benefits.  However, she has not provided any compelling evidence or convincing argument to further mitigate the FSM's serious AWOL offenses.  In view of the foregoing, there is no basis for granting the applicant's requested relief.


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)                                         AR20090021242



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ABCMR Record of Proceedings (cont)                                         AR20090021242



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