IN THE CASE OF:	  

		BOARD DATE:  6 July 2010  

		DOCKET NUMBER:  AR20090021700 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states:

* He was unjustly treated during his service in the Army
* The punishment he received was not consistent with the provisions of the Uniform Code of Military Justice (UCMJ)
* He served with honor in the Republic of Vietnam (RVN) and he was wounded twice in combat
* Upon returning to the United States he felt pressured into going absent without leave (AWOL) by his battery commander due to harassment

3.  The applicant provides:

* A Letter from his counsel
* A Letter from a Pardon Attorney, U.S. Department of Justice
* His DA Form 20 (Enlisted Qualification Record)
* Orders for the Valorous Unit Award
* His DD Form 214 (Report of Separation from Active Duty)
* His DD Form 215 (Correction to DD Form 214)
* Two award certificates for the Purple Heart


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests upgrade of the applicant's discharge so he can receive Department of Veterans Affairs (VA) benefits.

2.  Counsel states:

* The applicant's unit was involved in numerous combat activities in the RVN
* He was wounded twice while serving as a gunner and his actions and the action of his unit earned them the Presidential Unit Citation
* His troubles began in 1969 when he had conflicts with the new battery commander who was not an experienced combat officer on combat tactics and employment of weapons systems
* The battery commander told the applicant he was going to "railroad him out of the Army" before his expiration term of service
* With 105 days left in the Army the applicant could not take the battery commander's harassment anymore and went AWOL
* While in an AWOL status the applicant got married and bought a home
* He lived as a respectable member of his community until 1974 when he was apprehended and returned to military control at Fort Gordon, GA
* In 1975 when President Ford pardoned the draft dodgers who fled to Canada and allowed them to return to America the applicant's discharge was changed and he was grouped in the same category as the draft dodgers
* The applicant is guilty of leaving the Army without the proper discharge; he was not a draft dodger and he should not have been categorized with those who actually refused to serve their country
* Since 1975 the applicant has held numerous respectable jobs, including his current profession working with law enforcement officers
* He has never asked the Army or the VA for any support or for that matter he never received any
* His service in the RVN was honorable, sacrificial, and volunteered

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 enlisted in the Regular Army on 23 September 1966 for a period of 3 years.  He successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty (MOS) 63H (auto repairman) and later MOS 16F (automatic weapons crewman).

3.  On 16 August 1967, nonjudicial punishment (NJP) was imposed against the applicant under Article 15, UCMJ, for being absent from his place of duty.  His punishment consisted of a reduction to private (PV2)/E-2, a forfeiture of pay, and restriction and extra duty.

4.  The applicant served in the RVN from 22 November 1967 through 
20 November 1968.

5.  On 21 May 1969, NJP was imposed against the applicant under Article 15, UCMJ, for possessing a false military identification card with intent to deceive.  His punishment consisted of a reduction to private first class (PFC)/E-3, a forfeiture of pay, and restriction and extra duty.

6.  The applicant went AWOL on 10 June 1969 and returned to military control on 25 June 1969.  On 26 June 1969, without authority and with intent to remain away permanently, the applicant left his unit.  He was apprehended on 8 July 1974.  On 11 July 1974, charges were preferred against the applicant for the AWOL period and desertion.

7.  On 12 July 1974, after consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  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 VA, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he might encounter substantial prejudice in civilian life 


because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated:

* he could not adjust to taking orders
* his mother had heart trouble
* he was the sole support for his wife and four children
* he could not be retrained
* he would accept an undesirable discharge
* he requested a chapter 10 discharge

8.  The unit and intermediate commanders recommended disapproval of the applicant's request.  Trial by general court-martial was recommended.

9.  On 25 July 1974, the separation authority approved the applicant’s request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

10.  Accordingly, the applicant was discharged with an undesirable discharge on 15 August 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He had served a total of 2 years, 8 months, and 29 days of creditable active service with 1,854 days of time lost.

11.  The applicant provided a letter, dated November 1975, from a Pardon Attorney, U.S. Department of Justice, Washington, D.C., which states he was granted a full and unconditional pardon and he was issued a clemency discharge to replace his undesirable discharge.

12.  A DD Form 215, dated 26 January 1976, added the entry "DD 1953A Clemency Discharge Issued Pursuant to Presidential Proclamation No 4313" to item 27 (Remarks) on the applicant's DD Form 214.

13.  The available records contain a letter, dated 5 March 1976, which states the applicant was awarded a clemency discharge pursuant to Presidential Proclamation 4313 (PP 4313) of 16 September 1974.

14.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.


15.  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 VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

16.  PP 4313, dated 16 September 1974, was issued by President Ford and affected three groups of individuals:  (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 articles 
85 (desertion), 86 (absent without leave), or 87 (missing movement) of the Uniform Code of Military Justice.  The third group could apply to a Presidential Clemency Board, which was made up of individuals appointed by the President who would establish a period of alternate service of not more than 24 months that the individual should 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.

17.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  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.


19.  The 2008 Edition of the Manual for Courts-Martial provides, in pertinent part, the maximum authorized punishment for desertion terminated by apprehension is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.

DISCUSSION AND CONCLUSIONS:

1.  A discharge is not upgraded for the purpose of obtaining VA benefits.

2.  The evidence of record does not support the applicant's contention the punishment he received was not consistent with the provisions of the UCMJ.  The 2008 Edition of the Manual for Courts-Martial states that the maximum authorized punishment for desertion terminated by apprehension is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.

3.  The applicant contends he was unjustly treated and he felt pressured into going AWOL by his battery commander due to harassment.  However, there is no evidence the applicant sought assistance from his chain of command or chaplain in a way to resolve his problems within established Army procedures prior to going AWOL.  In addition, his record of misconduct started before he arrived at his last unit.

4.   The evidence of record shows the applicant was discharged with an undesirable discharge on 15 August 1974.  Evidence of record shows he was awarded a clemency discharge in 1976 pursuant to PP 4313 of 16 September 1974.  The governing Proclamation states the clemency discharge did not affect the underlying discharge.

5.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

7.  The applicant's record of service included two NJP actions and 1,854 days of time lost due to AWOL and desertion.  As a result, his record of service was not satisfactory and he 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 an upgrade of his 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)                                         AR20090021700



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ABCMR Record of Proceedings (cont)                                         AR20090021700



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