IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100011350 


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states he is applying for his pension and needs his discharge upgraded.  He further states that his thinking was distorted back then due to a lot of mental and physical abuse.  He further states that his mental capacity was very distorted following an attempt to lynch him during the time he was attending advanced individual training.

3.  The applicant provides a letter of support from a minister.

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's records show he was inducted into the Army on 1 February 1972.  He failed to complete initial entry training and was not awarded a military occupational specialty.  The highest rank/grade he held was private/E-1.

3.  His records show he received the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge (M-16).

4.  His records show he departed absent without leave (AWOL) on 29 April 1972.

5.  An Administration Center (ADMINCEN) Form 1966-5 (Reaffirmation of Allegiance and Pledge to Complete Alternate Service), dated 18 November 1974, shows he admitted to voluntarily absenting himself from his military unit without being properly authorized.  He was subsequently dropped from the rolls of the Army and declared a deserter effective 31 May 1972.  He was returned to military control on 5 November 1974.

6.  In a statement to the Board for Alternate Service he stated the reason for his absence from military service was that at the time he had one child and was expecting another and the girl was threatening to leave the children or put them in the juvenile home.  At that time he had no other choice but to go AWOL to get her straight and before he knew it 3 years had passed.

7.  ADMINCEN Form 1966-3 (Enlisted Statement - Request for Discharge for the Good of the Service), dated 18 November 1974, shows he voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313, 16 September 1974.  He 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 Uniform Code of Military Justice (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 Veteran’s Administration (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.

8.  His DD Form 214 shows he was discharged on 18 November 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 3 months and 16 days of creditable active service; 633 days of time lost before normal expiration of term of service; and 274 days of time lost after his normal expiration of term of service.

9.  His signature is affixed to a Pledge to Complete Alternate Service for absenting himself from his military unit without being properly authorized in contravention of the oath taken upon entering the nation's service.  He pledged to faithfully complete a period of 24 months service.  There is no available evidence indicating whether he did or did not complete this service.

10.  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.

11.  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.

12.  Army Regulation 635-200 sets forth the policy 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 discharge with characterization of service 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 applicant contends his thinking was distorted due to a lot of mental and physical abuse he has not submitted any evidence to substantiate this claim.  To the contrary, his statement to the Board for Alternate Service indicated his absence from military service was due to a family situation.

2.  Under the provisions of Presidential Proclamation 4313, he pledged to complete 24 months of alternate service.  There is no evidence he did so.

3.  The applicant's records show he had 907 days of time lost due to being AWOL.  The character of his discharge is commensurate with his overall record of military service and he has not provided sufficient evidence to mitigate the actions he took during his period of active service; therefore, he has not established a basis to justify upgrading his discharge.

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

5.  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)                                         AR20100011350



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ABCMR Record of Proceedings (cont)                                         AR20100011350



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