IN THE CASE OF:	  

		BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100010986 


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 an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he received a Clemency Discharge in recognition of his satisfactory completion of alternate service pursuant to Presidential Proclamation Number 4313 on 6 January 1976.  He adds there is no error in the record; however, he would like his discharge upgraded in order to qualify for Department of Veterans Affairs benefits.

3.  The applicant provides a copy of his DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty), dated 6 January 1976.

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 for a period of 2 years on 9 January 1967.  Upon completion of training he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant served overseas in the 25th Infantry Division, U.S. Army Vietnam, from 15 July 1967 through 13 July 1968.

4.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant was honorably discharged at Fort Hood, TX, on 17 October 1968, to immediately enlist in the Regular Army (RA).

	a.  At the time he had completed 1 year, 9 months, and 9 days of net active service this period and 11 months and 26 days of foreign service in Vietnam.

	b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the National Defense Service Medal, Republic of Vietnam Campaign Medal, Vietnam Service Medal [with four bronze service stars], and Combat Infantryman Badge.

5.  He enlisted in the RA for a period of 6 years on 18 October 1968.

6.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in item 38 (Record of Assignments) that he departed Fort Hood, TX, on 12 November 1968 en route to Germany; he was placed in an absent without leave (AWOL) status on 12 December 1968; and he was dropped from the rolls on 10 January 1969.

7.  Headquarters, U.S. Army Training Center Engineer, Fort Leonard Wood, MO, Special Orders Number 263, dated 20 September 1974, show the applicant returned to military control on 30 August 1974 and he was reassigned to the Joint Clemency Processing Center, Fort Benjamin Harrison, IN, with a reporting date of not later than 24 September 1974.

8.  The applicant's military personnel records are void of a DD Form 458 (Charge Sheet).

9.  On 26 September 1974, the applicant consulted with counsel and voluntarily requested a discharge for the good of the service under the provisions of Presidential Proclamation Number 4313, dated 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.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.

	a.  He was advised that he may be discharged under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veterans Administration; that he may be deprived of his rights and benefits as a veteran under both Federal and State laws; and that he may expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge.

   b.  He acknowledged that he understood that within 15 days of his discharge he was required to report to his State Director of Selective Service to arrange for the performance of alternate service.

	c.  Based on consultation with counsel, the applicant voluntarily executed the request for discharge for the good of the service by placing his signature on the document.

   d.  The applicant submitted a statement about his absence saying, "…I was listening to someone else and that was the biggest mistake in my life.
I just made a mistake."  He added, "…I did go to Vietnam to serve my country;
I did my full tour.  I was not trying to hide [and] I paid my taxes every year.  I have a wife and three kids depended [sic] on me to support.  I would like to see them have a good life."
   
   e.  The Joint Alternate Service Board reviewed the applicant's official records and determined he would be required to serve 14 months of alternate service.

10.  Headquarters, U.S. Army Administration Center, Fort Benjamin Harrison, IN, Special Orders Number 195, dated 26 September 1974, discharged the applicant on 26 September 1974 based upon Presidential Proclamation Number 4313 and Department of Defense, memorandum, Subject:  Implementation of Presidential Proclamation Number 4313.

11.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 26 September 1974, in accordance with the Special Presidential Proclamation and Department of Defense memorandum, with service characterized as under other than honorable conditions.  At the time he had completed 2 months and 18 days of net active service this period; 1 year,
9 months, and 9 days of prior active service; and he had 2,086 days of lost time.

12.  The applicant satisfactorily completed the assigned period of alternate service in the Reconciliation Service Program and was entitled to consideration for a Clemency Discharge.

13.  A DD Form 215, dated 6 January 1976, corrected item 27 (Remarks) of the applicant's 26 September 1974 DD Form 214 to add "DD [Form] 1963A Clemency Discharge issued in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation Number 4313."

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

15.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

16.  Presidential Proclamation 4313, issued on 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 Veterans Administration.  Soldiers who were AWOL entered the program by returning to military control and accepting a discharge in lieu of trial by court-martial.

17.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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 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.  The applicant contends his under other than honorable conditions discharge should be upgraded to an honorable discharge in order for him to qualify for government benefits.

2.  The evidence of record shows the applicant's initial period of honorable active service in the U.S. Army from 9 January 1967 to 17 October 1968 is documented on his initial DD Form 214.

3.  The applicant's request for separation on 26 September 1974 under the provisions of Presidential Proclamation Number 4313 for the good of the service was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  In addition, the offense that led to his discharge far outweighs his overall record.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate and equitable.

4.  The evidence shows the applicant was AWOL for a total of 2,086 days during the period of service under review and he completed less than 1 year and
10 months of his 6-year reenlistment commitment.  Thus, the evidence of record clearly shows the applicant's record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the applicant's overall quality of service during the period of service under review was not satisfactory and he is not entitled to a general discharge under honorable conditions.

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)                                         AR20100010986



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ABCMR Record of Proceedings (cont)                                         AR20100010986



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