BOARD DATE:	  11 January 2011

		DOCKET NUMBER:  AR20100018258 


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 discharge to honorable.

2.  The applicant states in his application and VA Form 21-4138 (Statement in Support of Claim) that he was granted leave from his unit in the Republic of Vietnam due to numerous Red Cross messages alerting him to various medical emergencies involving his four young children and wife.  He states he tried to seek assistance from military authorities at Fort Buchanan, Puerto Rico when he was home on leave but due to language barriers, he did not receive help.  He states he tried to get the equivalent of a compassionate reassignment to continue caring for his young family.  However, he was not successful.  In 1974, he states a representative from the Federal Bureau of Investigation told him to report to Fort Buchanan on 5 January 1975.  When he reported, he was sent to Fort Gordon, GA.  He received emergency messages from the Red Cross and he returned to Puerto Rico to care for his family.  He concludes by stating he is a Vietnam Veteran who received a pardon but now he cannot get medical benefits.  He is unemployed with no social security benefits and has no health insurance.  

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 20 June 1974, a DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty) and an affidavit.



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 on 24 July 1968.  He completed his initial entry training and was awarded military occupational specialty 43A (Textile and Leather Repair Assistant).

3.  On 18 December 1969, the applicant departed his unit on compassionate leave.  He did not return to his unit and was reported absent without leave (AWOL) on 5 February 1970.

4.  On 22 March 1974, the applicant returned to military control at Fort Buchanan, Puerto Rico and then transported to the Personnel Control Facility at Fort Gordon, GA. 

5.  On 9 April 1974, court-martial charges were preferred against the applicant for being AWOL from on or about 5 February 1970 to 22 March 1974. 

6.  The applicant signed a voluntary request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial, indicating that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that the Army was not for him, that he had no potential for further service, and that he may be discharged under other than honorable conditions.  He also stated that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.  He waived the 72-hour grace period and elected immediate discharge.

7.  In a letter, dated 14 May 1974, an Army chaplain stated he had interviewed the applicant twice.  From his interviews, the chaplain concluded the applicant had responsibilities for three children and was awaiting the birth of his fourth child.  The Army granted him emergency leave to attend to his family.

8.  The applicant’s company and intermediate commanders recommended a trial by general court martial due to the length of the applicant’s AWOL period instead of accepting his request for voluntary discharge under the provisions of chapter 10, Army Regulation 635-200 in lieu of trial by court-martial.

9.  The separation authority did not concur with the two intermediate commanders' recommendations.  He approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial on 30 May 1974 and directed the issuance of an undesirable discharge and reduction to the lowest enlisted grade.

10.  Accordingly, the applicant was discharged on 20 June 1974 and issued a DD Form 214 showing his service was characterized as under other than honorable conditions.  This form also confirms he had 1,506 days of lost time for the period 5 February 1970 to 21 March 1974. 

11.  On 19 December 1975, the applicant was issued a DD Form 215 that shows he was awarded a clemency discharge pursuant to Presidential Proclamation Number 4313 of 16 September 1974.

12.  On 9 June 1977, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

13.  References:

	a.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  The maximum punishment for AWOL of 30 days or more is a punitive discharge (dishonorable discharge or bad conduct discharge), confinement for up to 18 months, reduction to grade E-1, and forfeiture of all pay and allowances.

	b.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

   c.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.

   d.  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

   e.  Presidential Proclamation 4313, dated 16 September 1974, was issued by President Ford and affected three groups of individuals.  One group was members of the Armed Forces who were in an unauthorized absence status. These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions 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 were to 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 VA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his clemency discharge should be upgraded to an honorable discharge. 

2.  The applicant's record shows that he did not honorably complete his enlistment period due to 1506 days of lost time.  Under the provisions of chapter 10, Army Regulation 635-200, the applicant requested a discharge for the good of the service.  He was afforded the opportunity to consult with defense counsel and to voluntarily, and in writing, request separation from the Army acknowledging that he would receive a discharge under other than honorable conditions.  He elected to request discharge in lieu of trial by court-martial.  On 19 December 1975, he was granted a clemency discharge and a DD Form 215 was issued to him. 

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.
Furthermore, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.  

4.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.  In view of the foregoing, there is insufficient evidence to upgrade the applicant's discharge to honorable.

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)                                         AR20100018258





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ABCMR Record of Proceedings (cont)                                         AR20100018258



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