IN THE CASE OF:	  

		BOARD DATE:	  19 May 2011

		DOCKET NUMBER:  AR20100027335 


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, that his undesirable discharge (UD) be upgraded to an honorable discharge.

2.  He states, in effect, his service was characterized as undesirable based on misleading and insufficient information.  A letter, dated 11 July 1975, misrepresented what transpired during the application phase of the Reconciliation Service Program.  This letter was never provided to him.  He was not aware of the contents of this letter until he requested a copy of his DD Form 214 (Report of Separation from Active Duty).  He is disputing the statement which indicated he refused to comply with the terms and conditions of the Reconciliation Service Program.  

3.  He also states that 41 years ago he made a mistake in failing to report to his final duty station.  At that time he can only remember being physically and psychologically exhausted and when he got home his family environment had not changed and he slipped back into a life of depression.  He would like for the Board to know what it was like in 1975.  He is still willing to fulfill his responsibility for the Reconciliation Service Program if necessary.  The July 1975 letter indicated he was terminated from enrollment in the program due to not completing the required period of alternative service.    




4.  Further, he states he strongly protests the contents of this letter based on the fact he was never given any information stating that he was assigned a specific work detail.  On the contrary he was led to believe that his fulltime college status was an acceptable substitute.  He was never provided any verbal or written information regarding any work detail or work schedules for consideration or much less decline.  The letter stated he signed a statement declining further participation in the program.  Again this statements is false, whatever he signed he was led to believe it was a waiver allowing his college student status as an acceptable substitute for the work requirements.  He is hoping that serious consideration is given to grant him an honorable discharge with full VA benefits.

5.  He provides:

* DD Form 214
* Fifteen Continuing Education and Training Certificates
* An official transcript from the University of Texas at San Antonio
* An Article from Today Magazine, dated 1981

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 records show he enlisted in the Regular Army in pay grade E-1 on 7 November 1966.  He completed training and was awarded military occupational specialty 16B (Hercules Missile Crewmember).  He was promoted to pay grade E-4 on 30 October 1968.  

3.   On 18 March 1968, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for absenting himself from his unit from 7 to 16 March 1968.  

4.  He served in Korea from 30 May 1968 through 30 June 1969.

5.  On 21 April 1969, Headquarters, 2nd Battalion, 7th Artillery, Korea, published Special Orders Number 83, authorizing him 30 days of permanent change of station leave (from 29 June 1969) with a follow-on reassignment to Fort Gordon, GA, and a reporting date of 29 July 1969.

6.  His DA Form 20 (Enlisted Qualification Record), Item 38 (Record of Assignment), shows he was enroute to the Continental United States from Korea on 30 June 1969.  

7.  His records show he was reported in an AWOL status on or about 1 August 1969.  He returned to military control on 27 January 1975.  He was assigned to the Joint Clemency Processing Center, Fort Benjamin Harrison, IN, for administrative processing.

8.  On 28 January 1975, after consulting with counsel, he voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation 4313, dated 16 September 1974.  He acknowledged that he understood his unauthorized absence rendered him triable under the UCMJ and could lead to the imposition of a bad conduct discharge or a dishonorable discharge.  He also acknowledged he would be discharged under other honorable conditions and furnished a UD Certificate.  He further acknowledged that within 15 days of the date of receipt of his UD he must report to the State Director of the Selective Service to arrange for the performance of alternate service.  He further acknowledged he understood satisfactory completion of such alternate service would be acknowledged by the issuance of a Clemency Discharge Certificate.  

9.  On 28 January 1975, he completed a Reaffirmation of Allegiance and Pledge to Complete Alternate Service and acknowledged that on or about 1 August 1969 he voluntarily absented himself from his military unit without being properly authorized.  He stated that he was ready to serve in whatever alternate service his country could prescribe for him and pledged to complete 18 months of service.

10.  Additionally, on 28 January 1975, he was reduced to pay grade E-1 and discharged for the good of the service by reason of a willful and persistent unauthorized absence pursuant to Presidential Proclamation 4313.  He was credited with completion of 2 years, 8 months, and 18 days of net active service. He also had 469 days of lost time prior to his normal expiration term of service (ETS) date and 1,540 days of lost time after his normal ETS date.


11.  In a letter, dated 11 July 1975, the National Headquarters, Selective Service System, Washington, DC, advised the Commander, Reserve Components Personnel and Administration Center, St. Louis, MO, that the applicant had been terminated from enrollment in the Reconciliation Service Program because he had not completed his required period of alternate service.  Specifically, the applicant failed to report for work at his approved job and he signed a statement declining to participate in the program.  The letter also stated the applicant was notified of the termination.

12.  On 2 July 1982, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

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 a UD.  Alternate service was to be performed under the supervision of the Selective Service System.  The individual was responsible for finding a job that met the requirements of the program.  He would obtain the approval of his State Selective Service officials regarding the job and reports would be furnished periodically as to how he was performing.  When the period of alternate service was completed satisfactorily, the Selective Service System notified the individual's former military service and the military issued the actual clemency discharge.  A clemency discharge did not restore veterans' benefits; rather, it restored Federal and, in most instances, State civil rights which might 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 characterization of service would be retained.

14.  Army Regulation 635-200 (Enlisted Separations), then in effect, set forth the basic authority for separation of enlisted personnel.  Paragraph 3-7a stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.


15.  Army Regulation 635-200, paragraph 3-7b states 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.  

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD to an honorable discharge or a general under honorable conditions discharge.

2.  The applicant's contentions and the documents he provided have been noted; however, they do not sufficiently mitigate his offense or support his request for an upgrade of his discharge.  Presidential Proclamation 4313 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.  

3.  The evidence shows that upon return from a lengthy and willful unauthorized absence, the applicant agreed to be discharged and complete alternate service.  In July 1975, he was terminated from the program based on his failure to report for work at his approved job and declining to participate in the program.  No evidence shows he completed his alternate service pursuant to Presidential Proclamation 4313 for the issuance of a clemency discharge.  He provides no evidence to show he was informed that his college student status would substitute for the work requirements of the program.

4.  It is also noted that participation and successful completion of the Clemency Program did not provide for an upgrade of an individual's discharge.  It simply restored civil rights that were otherwise lost had individuals not participated.

5.  The evidence shows his discharge proceedings were conducted in accordance with the law and the provisions of Presidential Proclamation 4313 in effect at the time with no indication of procedural errors which would have jeopardized his rights.  He failed to complete the period of alternative service; therefore, he was not provided a clemency discharge certificate and his original characterization of service was retained.

6.  In view of the foregoing, there is no basis for granting his request.


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)                                         AR20100027335



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ABCMR Record of Proceedings (cont)                                         AR20100027335



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