IN THE CASE OF:	  

		BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100025038 


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, an upgrade of his undesirable discharge.

2.  He states he was only 19 years of age when he returned from Vietnam.  He was immature and had difficulty readjusting, so he was absent without leave (AWOL).  After a short period he returned on his own and did what was right.  He knows this is not a valid excuse; however, his offense of being AWOL has plagued him over the years.

3.  He states that before he passes away he would like to have this corrected and the stigma removed from his family.

4.  He provided:

* a Bronze Star Medal Certificate
* an Army Commendation Medal Certificate
* an Air Medal Certificate
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a memorandum granting him clemency
* a state of North Carolina criminal record search
* three character reference letters



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.  His military personnel record shows he was born on 13 July 1949 and enlisted in the Regular Army on 16 February 1967 at the age of 17 years, 7 months, and 4 days.  After the completion of training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  His DA Form 20 (Enlisted Qualification Record) shows:

* item 31 (Foreign Service) – he served in Vietnam from 2 December 1967 through 26 November 1968
* item 33 (Appointments and Reductions) – the highest rank he attained while serving on active duty was specialist four/pay grade E-4 on 18 January 1968
* item 33 – he was reduced to private (PVT)/pay grade E-2 on 30 April 1969 and further reduced to PVT/pay grade E-1 on 6 February 1970
* item 38 (Record of Assignments) –

* he was assigned to Company C, 3rd Battalion (Airborne), 187th Infantry Regiment, and received an "excellent" conduct and efficiency rating during his tour of duty in Vietnam
* he was dropped from the rolls as an Army deserter on 17 October 1969

* item 41 (Awards and Decorations) –

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Parachutist Badge
* Vietnam Service Medal
* Combat Infantryman Badge
* Republic of Vietnam Campaign Medal with Device (1960)
* Army Commendation Medal
* Bronze Star Medal

4.  His record contains Headquarters, 2nd Battalion (Airborne), 325th Infantry Regiment, Summary Court-Martial Order Number 18, issued on 30 April 1969.  This order shows he was charged with one violation of Article 86 of the Uniform Code of Military Justice for being AWOL from 10 to 16 April 1969.

5.  Item 44 (Time Lost under Section 972, Title 10, U.S. Code, and Subsequent to Normal Expiration Term of Service) of his DA Form 20 shows he was AWOL on three other occasions subsequent to his 10 to 16 April 1969 AWOL.

6.  His military service records are absent documentation related to his administrative separation action.  However, his record contains a copy of Headquarters, Personnel Center, U.S. Army Garrison Troop Command, Fort Bragg, NC, Special Orders Number 32 Extract issued on 13 February 1970 which show he was discharged under the authority of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for the good of the service and assigned the separation program number (SPN) 246.

7.  His DD Form 214 shows he was discharged on 13 February 1970 under the provisions of Army Regulation 635-200 with an SPN of 246.  His character of service was "under conditions other than honorable."  He completed 2 years, 10 months, and 12 days of net active service with a total of 56 days of lost time due to AWOL.

8.  On 31 July 1972 after careful consideration of his military records and all other available evidence, the Army Discharge Review Board (ADRB) found that he was properly discharged and denied his request for a change in the type and nature of his discharge.

9.  He provided a letter from the U.S. Department of Justice, Office of the Pardon Attorney, Washington, DC, dated 16 December 1975.  This document shows he was granted a full and unconditional pardon and a clemency discharge under the direction of President Ford.  This document also stated the clemency discharge replaced his undesirable discharge and he should be considered to have a neutral discharge.

10.  On 11 February 1976, he was issued a DD Form 215 (Correction to DD Form 214) adding the following statement to item 30 (Remarks) of his DD Form 214:  "DD Form 1953A Clemency Discharge Issued Pursuant to Presidential Proclamation Number 4313."  There is no DD Form 1953A in the available record.

11.  His record contains an unsigned letter from the Office of the Adjutant General, dated 18 March 1976.  This letter informed him that he was awarded a clemency discharge pursuant to Presidential Proclamation 4313 of 16 September 1974.  The letter further informed him that he may apply to the ADRB for review and possible change of his discharge.

12.  There is no evidence in the available record to show he applied to the ADRB for an upgrade of his discharge pursuant to receipt of Presidential Proclamation 4313.

13.  He provided copies of various award certificates which show he was recognized for exceptionally meritorious achievement during his service to his country.

14.  He also provided three character reference letters that state, in effect:

	a.  his unselfish nature led him to build a ramp for a disabled friend, which in turn gave his friend back his independence;

	b.  he is an insightful person who has the ability to make people laugh at a time when they need it most.  He customized a bathroom for a World War II amputee, which proved to be most advantageous to the needs of the recipient; and

	c.  he is a good friend and devoted family man.  He is a man of his word in all business dealings who always paid for the services he received in a timely manner.

15.  He provided a State of North Carolina Criminal Record Search form that shows he was found to free of any criminal activities from July 1987 through 1 September 2010.

16.  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 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 Veterans Administration (VA) [currently known as the Department of Veterans Affairs].

17.  A Presidential Memorandum was issued by President Ford on 19 January 1977 [sometimes referred to as Presidential Proclamation 4313 Extension].  This memorandum mandated the issuance of a general discharge to individuals who had:  (1) applied for consideration under Presidential Proclamation 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.

18.  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.  Individuals could have their discharges upgraded if they met any one of the following criteria:  wounded in action, received a military decoration other than a service medal, successfully completed an assignment in Southeast Asia, completed alternate service, received an honorable discharge from a previous tour of military service, or completed alternate service or excused therefrom in accordance with Presidential Proclamation 4313 of 16 September 1974.  Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area, discharge based on a violent act of misconduct, discharge based on cowardice or misbehavior before the enemy, or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law.

19.  Public Law 95-126 provided for a "Relook Program."  All cases upgraded from under other than honorable conditions under the SDRP or extension to Presidential Proclamation 4313 had to be relooked and affirmed or not affirmed under uniform standards.  Two of the principal features of Public Law 95-126 were:  (1) the addition of 180 days of continuous unauthorized absence for other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for VA benefits, such absence must have been the basis for discharge under other than honorable conditions and is computed without regard to expiration term of service; and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination is made under the published uniform standards and procedures.

20.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 10 provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.

21.  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.

22.  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.

23.  Army Regulation 635-5-1 (Separation Program Numbers and Authorities), in effect at the time of the applicant's discharge, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  This regulation identified the SPN of "246" as the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.

DISCUSSION AND CONCLUSIONS:

1.  His contentions that his under other than honorable conditions discharge should be upgraded because he feels he was immature upon his return from Vietnam and had difficulty readjusting, and that his past offenses have plagued him over the years and he would like the stigma removed from his family before he passes away were carefully considered.

2.  There is no evidence that shows he was any less mature than other Soldiers of the same age who managed to serve honorably.

3.  The fact that he has endured the burden of a discharge under other than honorable conditions throughout his post-service life is not a basis for upgrading his discharge.  The ABCMR does not grant a request for upgrade of a discharge solely for the purpose of removing a stigma.

4.  Although his separation packet was not available for the Board's review, there is a presumption of administrative regularity in the conduct of governmental affairs.  In this instance, the presumption of regularity is based on Army Regulation 635-200 which prescribes the processing procedures for separation and specific guidance in determining the character of service and description of separation.  Discharges under chapter 10, Army Regulation 635-200, require an admission of guilt to the offenses charged.

5.  In the absence of evidence to the contrary, it is presumed he was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and his rights were fully protected throughout the separation process.

6.  The evidence indicates he received a clemency discharge under Presidential Proclamation 4313 of 16 September 1974.  However, this clemency discharge does not alter the underlying reason for the undesirable discharge he received as a result of his extensive misconduct.

7.  After a review of his record of service, it is evident his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His service is deemed undesirable in view of his nonjudicial punishment and lost time due to AWOL.  Therefore, he is not entitled to either an honorable or a general discharge.

8.  In view of the foregoing, there is no basis 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 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)                                         AR20100025038



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ABCMR Record of Proceedings (cont)                                         AR20100025038



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