IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20110002058 


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 undesirable discharge to an honorable discharge.

2.  The applicant states he believed the discharge he received was supposed to be turned into an honorable discharge within 6 months.  However, he did not find until now that he had to apply for the upgrade.

3.  The applicant provides no documentary evidence in support of his application. 

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 enlisted in the Regular Army on 24 January 1968.  He was trained in and awarded military occupational specialty (MOS) 55B (Ammunition Storage Specialist).  The highest rank/grade he attained while serving on active duty with specialist four (SP4)/E-4.

3.  The applicant's record shows he served in the Republic of Vietnam (RVN) from 27 January through 26 June 1970.  It further shows that during his active duty tenure, he earned the:

* Army Commendation Medal
* National Defense Service Medal
* Vietnam Service Medal
* RVN Campaign Medal with Device (1960)
* RVN Gallantry Cross with Palm Unit Citation
* 2 Overseas Service Bars

4.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on the following dates for the offenses indicated:

	a.  16 October 1969, for twice failing to obey orders issued by his commander and missing bed check;

	b.  8 April 1970, for being absent from his unit without authority; and

	c.  12 May 1970, for being absent from his place of duty.

5.  The record shows the applicant accrued 1,586 days of time lost during two separate periods of being absent without leave (AWOL) between 10 August 1970 and 11 January 1975.  

6.  On 11 October 1970, the applicant departed AWOL from his unit at Fort Hood, TX and on 19 October 1970, he was dropped from the rolls (DFR) of his unit as a deserter.  

7.  On 2 October 1975, the Commander, U.S. Army Enlisted Records Center, Fort Benjamin Harrison, IN, notified the applicant of his eligibility under the provisions of Presidential Proclamation 4313 (PP 4313) which established a program for clemency for individuals who were AWOL, DFR, or who missed movement during the time frame from 4 August 1964 through 28 March 1973 and who had no offenses other than those listed.  The applicant was also informed of the following participation requirements of the program:

	a.  agree to participate in the President's program,

	b.  agree to reaffirm his allegiance to the United States, and

	c.  pledge to perform alternate service for a period not to exceed 24 months.

8.  On 13 January 1975, the applicant returned to military control for discharge processing at Fort Benjamin Harrison, and completed a reaffirmation of allegiance and pledged to complete alternate service.  He also completed a voluntary request for discharge for the good of the service pursuant to PP 4313.  He confirmed that prior to completing his discharge request he had been afforded the opportunity to consult with military counsel.  He also confirmed he would receive an undesirable discharge and he understood the consequences of receiving this discharge.

9.  The applicant's discharge was approved, and on 13 January 1975, he was discharged under the provisions of PP 4313 with an undesirable discharge.  The DD Form 214 he was issued at the time shows he completed 2 years, 7 months, and 9 days of creditable active military service and accrued 1,586 days of time lost due to AWOL.  It also verified he agreed to serve 10 months of alternate service pursuant to PP 4313.

10.  The applicant's record contains a Selective Service System letter, dated 14 July 1975.  This letter signed by the Reconciliation Service Division Manager indicates the applicant was terminated from the program because he did not complete the required period of alternate service.  It further indicates the applicant left his approved job without authorization and he had not responded to official correspondence concerning his action.  It further stated the applicant left town and did not leave a forwarding address.

11.  On 10 May 1988, the Army Discharge Review Board (ADRB), after carefully considering the applicant’s case, determined his discharge was proper and equitable, and voted to deny his request for an upgrade of his undesirable discharge and not to change the reason for discharge.  

12.  PP 4313, dated 16 September 1974, announced a clemency program designed to provide deserters with an opportunity to work their way back into American society.  This proclamation pertained to all individuals who were carried administratively as deserters if their last period of AWOL was between 4 August 1964 and 28 March 1973.  Under this program, eligible enlisted deserters were offered the opportunity to request an undesirable discharge for 


the good of the service if they agreed to perform alternate service under the supervision of the Selective Service System.

13.  Successful completion of alternate service entitled a participant to receive a Clemency Discharge Certificate.  Clemency discharges issued pursuant to PP 4313 did not impact the underlying discharge a member received and did not entitle the individual to any benefits administered by the Department of Veterans Affairs (VA).  The ADRB adopted the policy that a clemency discharge would be considered by a board in its deliberations, but that the discharge per se did not automatically require relief be granted.

14.  On 8 October 1977, Public Law 95-126 added 180 days of continuous absence, if it was used as the basis for an under other than honorable conditions discharge, to that list of reasons for discharge which acted as a specific bar to eligibility for benefits administered by the VA.  It also required that uniform discharge review standards be published that were applicable to all persons administratively discharged or released from active duty under other than honorable conditions.  It further required that discharges upgraded under special discharge review programs be reconsidered under the newly established uniform discharge review standards.  On 29 March 1978, these newly established uniform discharge review standards were published in Department of Defense Directive 1332-28.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention his discharge should be upgraded because he was told it would be in 6 months has been carefully considered.  However, the evidence is not sufficient to support this claim.  A Selective Service System letter in the record shows the applicant was terminated from the alternative service program he agreed to participate in based on his leaving his approved job without authorization.

2.  The applicant's discharge processing was accomplished in accordance with the applicable law.  All requirements of law were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record reveals an extensive disciplinary history that includes his acceptance of NJP on three separate occasions and his accrual of 1,586 days of time lost due to AWOL.  As a result, given the applicant's failure to complete his alternate service and receive a clemency discharge, there is an insufficient evidentiary basis to support an upgrade of his discharge at this late date. 

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)                                         AR20110002058



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ABCMR Record of Proceedings (cont)                                         AR20110002058



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