IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100010876 


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, that his Undesirable Discharge be upgraded to an Honorable Discharge. 

2.  The applicant states, in effect, he believes he had extenuating circumstances which directly affected his actions.   When he returned to the United States, he was not able to cope with daily living and working at Fort Benning, GA because of the experiences he suffered while in Vietnam.  He felt he was mentally on edge and feared that if he stayed around he would have lost control and harmed someone.  He contends he did not seek any mental health help due to the stigma that the Army placed on Soldiers for being weak. 

3.  The applicant has not provided any documentation in support of his request. 

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 on 31 May 1968 for a period of 
3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11H (Infantry Direct Fire Crewman).  His records show he was honorably discharged on 26 February 1969 for the purpose of immediate reenlistment.  On 27 February 1969, he reenlisted for an overseas assignment to the Republic of Vietnam.   He was promoted to the rank/pay grade of specialist/E-4.

3.  A copy of his DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam during the period 10 May 1969 through 17 July 1970.  On 26 December 1969, the applicant received non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his prescribed place of duty: guard mount. 

4.  A copy of Special Court-Martial Order Number 15, Headquarters, 11th Infantry Brigade, Americal Division, dated 23 March 1970, indicates the applicant was convicted by a special court-martial under the UCMJ, for the following:

* violation of Article 91 for assault on his superior noncommissioned officer by hitting him on the chest with his hand on or about 21 January 1970
*  violation of Article 95 for resisting arrest by a military police officer by striking him on the head with his fist on or about 21 January 1970
*  violation of Article 128 for assault on his first sergeant by lifting a loaded M16A1 rifle on or about 21 January 1970
* violation of Article 134 for wrongfully communicating to a noncommissioned officer, a threat to kill him or about 21 January 1970

5.  On 18 February 1970, his sentenced was adjudged and he was sentenced to reduction to the rank/pay grade of private/E-1, forfeiture of $87.00 pay per month for 6 months, and confinement at hard labor for 4 months.  On 9 April 1970, his sentence was approved and the convening authority suspended the portion pertaining to his confinement.

6.  On 27 August 1970, the applicant received NJP for violation of Article 86 of the UCMJ by absenting himself from his place of duty on or about 20 August 1970 until on or about 26 August 1970.  The punishment imposed was forfeiture of $69.00 per month for one month.   



7.  On 4 January 1971, the applicant was reported absent without leave (AWOL) from his unit.  He was subsequently dropped from the rolls (DFR) of his organization on 3 February 1971.

8.   A copy of a memorandum from Company D, 5th Battalion, 31st Infantry, dated 9 February 1971, Subject:  Commanding Officer's Inquiry, shows an inquiry into the cause for the applicant's absence was conducted.  There was no evidence of domestic strife, indebtedness, and trouble with his superiors.  His fellow platoon members gave no reason for his AWOL status and there was no indication of suspected foul play or mental instability.  Accordingly, he was DFR'd on 3 February 1971.

9.  In a 21 January 1975 letter from the U.S. Army Enlisted Records Center, Fort Benjamin Harrison, Indiana, the applicant was notified that he was eligible to participate in the program established by Presidential Proclamation 4313, 16 September 1974.  He was advised that, in order to participate in the program, he must agree to participate in the President’s Program; agree to reaffirm his allegiance to the United States; and pledge to perform alternate service for a period not to exceed 24 months (this portion of the program was administered by the Selective Service System and entailed performance of work in jobs that promoted the national health, safety, or interest).  He was afforded the opportunity to consult with a military lawyer or other counsel prior to undertaking the obligations.  He was also required to physically present himself at Fort Benjamin Harrison.  

10.  On 21 January 1975, the applicant voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313, 16 September 1974.  He acknowledged that his absence was characterized as a willful and persistent unauthorized absence for which he was subject to trial by court-martial for a violation of the Uniform Code of Military Justice and could lead to the imposition of a bad conduct or dishonorable discharge.  He indicated that he was making this request of his own free will and had not been subject to any coercion whatsoever by any person.  He further acknowledged that he would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He was advised that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Affairs (VA) because of an undesirable discharge.  

11.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged under other than honorable conditions on 21 January 1975.  Item 9c (Authority and Reason) indicates he was separated pursuant to 


Presidential Proclamation 4313.  He had completed 2 years, 4 months, and 
29 days of creditable active service.  He also had a total of 489 days of lost time before normal expiration of term of service (ETS) and 1053 days of lost time after normal ETS due to AWOL. This form also shows he agreed to serve 9 months alternate service pursuant to Presidential Proclamation Number 4313.  He was also issued a DD Form 258A (Undesirable Discharge Certificate).

12.  The applicant's records contain a copy of a letter of termination from the Selective Service System, dated 20 October 1975.  The letter stated the decision to terminate the applicant from an active enrollment status was due to his unsatisfactory performance on two successive approved jobs, in which he was dismissed from both. 

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

14.  Army Regulation 635-200 (Enlisted Separations), 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.  

15.  On 16 September 1974, President Gerald Ford issued Presidential Proclamation 4313.  This Proclamation provided an opportunity for deserters to work their way back into American society.  Three categories of service members were eligible beneficiaries of Proclamation 4313 to include members of the Armed Forces who were in an unauthorized absence status.  The individuals who were absent from the Armed Forces were afforded an opportunity to return to military control and elect either an Undesirable Discharge under Presidential Proclamation 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 Department of Veterans Affairs.

16.  A Presidential Memorandum was issued by President Ford on 19 January 1977 (sometimes referred to as PP 4313 Extension).  This memorandum 


mandated the issuance of a general discharge to individuals who had: (1) applied for consideration under PP 4313; (2) been wounded in action or decorated for valor; and (3) records free of any compelling reason to deny relief.  This was a mandate to the ADRB from the President and was to be applied by the ADRB without any applications from the affected individuals.  Whether the individuals had performed alternate service was not an issue to be considered.  

17.  The Department of the Army Special Discharge Review Program (SDRP) was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program."  It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary.  The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case.  An individual who had received a punitive discharge was not eligible for consideration under the SDRP.  Absentees who returned to military control under the program were eligible for consideration after they were processed for separation.  Eligibility for the program was restricted to individuals discharged between 9 August 1964 and 28 March 1973, inclusive, with an undesirable, under other than honorable conditions, or a general discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his undesirable discharge should be upgraded to an honorable discharge was carefully considered, however was found not to be supported by the evidence provided.  

2.  The applicant was discharged under the provisions of Presidential Proclamation 4313 on 21 January 1975, and was issued an Undesirable Discharge Certificate.  There is no evidence of record which indicates the applicant applied to the ADRB for an upgrade of his discharge under the Presidential Proclamation 4313 Extension.  However, it appears that he did not meet all the eligibility criteria for an upgrade of his discharge under this program.  

3.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, which all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

4.  In addition, the applicant's record of service shows he accepted two charges of NJP under Article 15 of the UCMJ, was convicted by special court-martial, 


DFR'd as an Army deserter, and ultimately terminated from the Reconciliation Service Program.  As a result, his record of service is not satisfactory and does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to 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)                                         AR20100010876



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ABCMR Record of Proceedings (cont)                                         AR20100010876



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