IN THE CASE OF:	  

		BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20100009358 


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, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to upgrade his under other than honorable conditions discharge to a discharge which would qualify him for Department of Veterans Affairs (VA) medical benefits.

2.  The applicant states, in effect, he is not claiming his record to be in error because he was, in fact, absent without leave (AWOL); however, the circumstances surrounding his AWOL status were due to incarceration by civil authorities for 30 days while on an authorized absence from the Army.  He contends his civil case was dismissed on the grounds of self-defense and he was released from civilian confinement.  The fact still existed that he missed reporting for duty on the prescribed date.

3.  He states he had just finished advanced individual training at Fort Belvoir, Virginia, and was preparing to report for an overseas assignment to Germany at the time of the incident.  He is greatly in need of an upgrade of his discharge due to very severe disabilities involving his heart, lungs, and liver.

4.  The applicant provides copies of the following:

* his college transcripts
* a church program
* his DD Form 214
* his DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty)

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 U.S. Army Reserve Delayed Entry Program (DEP) on 7 April 1972 for a period of 6 years.  He was released from DEP status and enlisted in the Regular Army on 14 April 1972 for a period of 3 years.  A copy of his DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows he enlisted for an assignment to U.S. Army Europe and for military occupational specialty (MOS) 52B (Power Generator Equipment Operator and Maintenance).  He completed basic combat and advanced individual training and was awarded MOS 52B.

3.  A copy of a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) shows the applicant was reported AWOL on 28 September 1972 and dropped from the unit rolls on 8 November 1972.  He was apprehended by military authorities and returned to military control on 2 March 1973.

4.  On 28 March 1973, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty.  His punishment was restriction for 3 days.

5.  The facts and circumstances concerning the applicant's discharge proceedings are not in the available records.  However, his DD Form 214 shows he was discharged on 10 May 1973 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) with an under other than honorable conditions discharge.  His DD Form 214 also indicates he had 6 months and 27 days of creditable service, 7 days of other service, and 183 days of lost time.

6.  On 9 November 1976, the applicant was informed that he had been granted a clemency discharge pursuant to Presidential Proclamation 4313, dated 16 September 1974.  He was given a DD Form 215 to be attached to his DD Form 214 which added a statement to item 30 (Remarks) which read:  "DD Form 1953A Clemency Discharge issued in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation No 4313."

7.  The applicant was further advised that he could apply to the Army Discharge Review Board (ADRB) for review and possible change to his discharge.  There is no evidence that the applicant applied to the ADRB to upgrade his discharge.

8.  The applicant provides copies of his college transcripts from Lawson State Community College which show he completed course work for electronics.  He also provides a copy of a church program from Emmanuel Temple Church.  He states he serves on the board of deacons.

9.  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, the 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 under other than honorable conditions discharge certificate would normally be furnished to an individual who was discharged for the good of the service.  However, an undesirable discharge was considered appropriate at the time the applicant was discharged.

10.  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.

11.  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.

12.  Presidential Proclamation 4313, dated 16 September 1974, provided for the issuance of a clemency discharge to 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.  Upon successful completion of the alternate service, former members would be granted a clemency discharge by the President of the United States, thus restoring his or her affected civil rights.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his under other than honorable conditions discharge was carefully considered; however, it was not found to be supported by the evidence provided.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  The applicant was granted a clemency discharge; however, it did not affect his underlying discharge and did not entitle him to any VA benefits.

3.  The applicant's post-service achievements are noted.  The fact that he attended college for electronics and he serves on his church's deacons' board is noteworthy; however, the character of the applicant's discharge is commensurate with his overall record of military service and there is no justification for upgrading his discharge.

4.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy that 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)                                         AR20100009358



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)