IN THE CASE OF:	  

		BOARD DATE:	  25 October 2011

		DOCKET NUMBER:  AR20110008174 


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 under other than honorable conditions discharge to a general discharge. 

2.  The applicant states:

* He served in Vietnam from 11 October 1970 to 3 October 1971
* He came home on leave but he did not return back to the military
* He had great fear for his life and did not want to go back to Vietnam
* He was drinking in service and his mental condition got worse
* He did not receive the mental or medical health treatment that he needed
* He is now homeless and in indeed of medical benefits
* He has medical conditions related to his lower back and arthritis

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 5 May 1970 and he was trained in military occupational specialty 11B (Light Weapons Infantryman).  

3.  He served in Vietnam from on or about 8 October 1970 to on or about 20 October 1971.  He was awarded the National Defense Service Medal, Vietnam Service Medal, Combat Infantryman Badge, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and two overseas service bars.

4.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for:

* 3 August 1970, being absent without leave (AWOL) from 1 to 2 August 1970
* 11 March 1971, being AWOL on 19 February 1971

5.  On 20 October 1970, he departed his Fort Carson, CO, unit on leave but he did not return.  Accordingly, on 23 November 1971, he was reported in an AWOL status and on 29 December 1971, he was dropped from the Army rolls as a deserter.  He was apprehended by Federal authorities and returned to military authorities at Fort Bragg, NC, on 18 December 1974.

6.  His service record is void of the complete separation packet; however, his records contain:

	a.  Statement to the Board for Alternate Service, dated 18 December 1974, wherein he elected to be discharged.  He acknowledged that he voluntarily submitted this statement with the full knowledge and understanding that he was not obligated to do so.  He stated that the reason for his AWOL was that he could not get transferred close to home and that he wanted to transfer close to home to be with his sick mother. 

	b.  Election of Military Rights statement, dated 20 December 1974, wherein he stated that he fully understood he had the opportunity for military counsel to inspect his military records to see if any irregularities, inconsistencies, or information that may be beneficial to his case exists or which act as either a defense or in mitigation to any administrative or judicial actions which could be pursued.  He was advised by military counsel and elected his records be checked. 

	c.  Memorandum, dated 20 December 1974, wherein he was notified that the Joint Alternate Service Board established by the Presidential Proclamation 4313 had reviewed his records and determined he would be required to serve 9 months of alternate service.

	d.  Statement wherein he stated he had been told by legal counsel about the President's Clemency Program and that based on what he was told, he opted for option 1 "sign a Reaffirmation of Allegiance, Pledge of Public Service, and accept an Undesirable Discharge." 

	e.  Statement, dated 30 June 1975, form the National Headquarters, Selective Service System, terminating him from the Reconciliation Service Program for failure to complete his required period of alternate service.  He was non-cooperative with efforts to place him on an approved job.  He failed to report for scheduled interviews and he failed to respond to official correspondence.  

	f.  A duly-constituted DD Form 214 that shows he was discharged on 20 December 1974 for the good of the service by reason of willful and persistent unauthorized absence pursuant to Presidential Proclamation Number 4313 with a character of service of under other than honorable conditions.  This form also shows he completed a total of 1 year, 6 months, and 20 days of creditable active military service, and had accrued 162 days of lost time prior to the normal expiration of his term of service (ETS) and 954 days after ETS.  The DD Form 214 also contains an entry in item 27 (Remarks) that indicates he agreed to serve 9 months of alternate service.

7.  There is no indication in his records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations.

8.  In Presidential Proclamation Number 4313, dated 16 September 1974, the President announced a clemency program designed to provide deserters 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.  Successful completion of alternate service entitled a participant to receive a Clemency Discharge Certificate.  Clemency Discharges issued pursuant to Presidential Proclamation Number 4313 did not impact the underlying discharge a member received and did not entitle the individual to any benefits administered by the DVA.  The Army Discharge Review Board 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. 

9.  The Department of Defense (DOD) Special Discharge Review Program (SDRP) was directed in a memorandum from the Secretary of Defense in 1977.  The SDRP stipulated that all former service members who received an undesirable or a general discharge during the period 4 August 1964 through 28 March 1973 were eligible for review under the SDRP.  It further indicated that individuals who received an undesirable discharge during the Vietnam era would have their discharges upgraded if they met one of the following criteria:  wounded in combat in Vietnam, received a military decoration other than a service medal, successfully completed an assignment in Southeast Asia (SEA) or in the Western Pacific in support of operations in SEA, completed alternate service or was excused from completion of alternate service under the clemency program instituted in 1974, or received an honorable discharge from a previous tour of military service.

10.  On 8 October 1977, Public Law 95-126 provided that 180 days of continuous absence, if it was used as the basis for an under other than honorable conditions discharge, be added to that list of reasons for discharge which acted as a specific bar to eligibility for benefits administered by the VA.

11.  Public Law 95-126 further 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 the automatic criteria established under the SDRP be reconsidered under the newly established uniform discharge review standards.  On 29 March 1978, these newly established uniform discharge review standards were published in DOD Directive 1332-28.

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, 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 would normally be furnished an individual who was discharged for the good of the Service.

13.  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 based on his fear to return to Vietnam was carefully considered.  However, there is an insufficient evidentiary basis to support granting the requested relief.  Although the applicant's record is void of a complete separation packet containing all the facts and circumstances surrounding his discharge processing, the record does include the applicant's acknowledgement statements to be discharged for the good of the service pursuant to Presidential Proclamation Number 4313 based on his willful and persistent unauthorized absence, which he completed after consulting with legal counsel and being advised of the impact of an undesirable discharge.

2.  At the time of his discharge, he submitted a statement wherein he stated that he wanted to be close to home.  He did not bring up or raise issues related to medical or mental conditions. 

3.  His record contains a DD Form 214 that confirms the basis for his discharge and carries with it a presumption of regularity in the discharge process.  Absent any evidence to the contrary, it is concluded the applicant’s discharge processing was accomplished in accordance with the applicable regulations and it appears all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's record reveals an extensive history of AWOL and two instances of NJP.  Further, his record confirms he accrued 1,116 days of days of total lost time due to AWOL.   As a result, the undesirable discharge he received accurately reflects the overall quality of his service and did not support the issue of an honorable or general discharge at the time of his discharge, nor does it support an upgrade at this time.  



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)                                         AR20110008174





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ABCMR Record of Proceedings (cont)                                         AR20110008174



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