BOARD DATE:	    9 December 2010   

		DOCKET NUMBER:  AR20100015279 


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 his Vietnam service be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  He also requests, in effect, that his discharge be upgraded to at least a general discharge under honorable conditions.  

2.  The applicant states, in effect, he was in Vietnam from 14 September 1966 through 13 September 1967.  He submitted a DD Form 149 (Application for Correction of Military or Naval Record under the Provisions of Title 10, U.S. Code, Sec. 1552) on 14 August 1990 and has received no answer. He also states, in effect, that he was unjustly treated when he came home from Vietnam and found out that his father was dying from cancer.  His father died in 1968.  He was told to report to Ft Rucker and asked for an extension of his leave to deal with the issues.  The leave extension request was denied and he just didn’t report in.  At that time he felt his father was more important than the military.  Now he understands he was wrong.  He was young and all he could think of was his family.  He feels his discharge should be upgraded due to his honorable service in Vietnam.

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), 
* DD Form 214, dated 8 December 1969
* letter from Office of the Adjutant General Reserve Components Personnel and Administration Center, dated 12 March 1976  
* DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 11 February 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 sub-stantive 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 request that his Vietnam service be added to his DD 214 was previously resolved.  A DD Form 215 was issued on 5 April 1991 that shows the applicant's DD Form 214 was corrected to show his period of service in Vietnam and the awards resulting from that service.  A copy of his DD Form 215 will be provided to him.  This issue will not be discussed further in this Record of Proceedings. 

3.  The applicant's record shows that he enlisted in the Regular Army on 11 April 1966.  Upon completion of advanced individual training he was awarded military occupational specialty 13A (Basic Field Artilleryman).  The highest rank he attained while serving on active duty was specialist four (SP4)/pay grade E-4.

4.  Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he completed a tour of duty in the Republic of Vietnam during the period 14 September 1966 through 13 September 1967.

5.  The applicant's record reveals a disciplinary history that includes the acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 29 December 1966 for violating curfew.  On 16 August 1968, he was convicted by a special court-martial of being absent without leave (AWOL) from 4 November 1967 to 21 June 1968.  On 
11 October 1968, he was convicted by summary court-martial of being absent from his organization from 3 to 10 September 1968 and on 27 November 1968, he was convicted by summary court-martial of being AWOL and breaking restriction. 

6.  On 20 November 1969, charges were preferred against the applicant for being AWOL from his unit from 8 January 1969 until on or about 23 October 1969.

7.  On 24 November 1969, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge and the issuance of an Undesirable Discharge Certificate, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested 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.

8.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his 
discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  On 8 December 1969, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 8 December 1969, the applicant was discharged accordingly.  The DD Form 214 he was issued for this period of service confirms he completed 
2 years, 1 month, and 13 days of total active service.  He also had 340 days of lost time and 221 days were lost subsequent to his normal expiration term of service date.

10.  On 11 February 1976, the applicant was granted a clemency discharge in recognition of completion of alternate service under Presidential Proclamation 4313. 

11.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

12.  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 Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate was appropriate at the time the applicant was separated.

13.  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 public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.  Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge.  Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge.  The clemency discharge did not affect the individual’s underlying discharge and did not entitle him to any VA benefits.  Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge.  If a participant of the program failed to complete the period of alternative service the original undesirable characterization of service would be retained.

14.  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.

15.  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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and it was determined that there is insufficient evidence to support his claim.

2.  The applicant's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  The applicant's record of service shows he received punishment under the provisions of Article 15 of the UCMJ and he was punished by a summary court-martial on two occasions and by special court-martial on another occasion.

4.  The clemency discharge the applicant was granted under Presidential Proclamation 4313 restored his civil rights but the underlying discharge was not changed.  His clemency discharge is considered a neutral discharge which did not entitle him to any benefits administered by the Department of Veterans Affairs.

5.  Based on the record of misconduct, the applicant’s service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, it would not be appropriate to upgrade 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)                                         AR20090008281



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ABCMR Record of Proceedings (cont)                                        AR20100015279



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