IN THE CASE OF:	  

		BOARD DATE:	  15 November 2011

		DOCKET NUMBER:  AR20110010414 


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 that his discharge be upgraded to general under honorable conditions.

2.  The applicant states when he was given orders to return to Vietnam he was afraid to return and this fear was the cause of his misconduct.  He served the country honorably including a tour in Vietnam and has not been in any trouble since his discharge.

3.  The applicant provides copies his DD Form 214 (Report of Separation from Active Duty) and a letter of support from the President of the American Federation of Government Employees Local 3930. 

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 2 August 1969, completed training, and was awarded military occupational specialty 71B (Clerk Typist). 

3.  After receiving orders to Vietnam he went absent without leave (AWOL) from the Overseas Replacement Center (Vietnam), Oakland, CA on 25 October 1970 and remained absent until 29 January 1971 (97 days).

4.  The applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows on:

* 4 February 1971, for 97 days of AWOL
* 8 September 1971 for one day of AWOL;
* 13 November 1971, for being absent from his appointed place of duty
* 7 January 1972, for 7 days of AWOL 

5.  He served in Vietnam from 4 March 1971 through 29 January 1972 with Headquarters and Headquarters Detachment, 48th Transportation Group.

6.  The applicant went AWOL on 26 February 1972 and remained absent until 25 January 1975.

7.  Although the discharge documentation is not of record, the evidence of record shows that the applicant was discharged for the good of the service in lieu of trial by court-martial in accordance with Presidential Proclamation 4313.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. 

8.  The applicant's DD Form 214 shows he:

	a.  was discharged for the good of the service under other than honorable conditions on 29 January 1975;

	b.  had 2 years, 2 months, and 21 days of creditable service and 1,162 days of time lost;

	c. was awarded the National Defense Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Vietnam Service Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14); and


	d.  agreed to serve 12 months of alternate service pursuant to Presidential Proclamation Number 4313.

9.  On 12 February 1976, the Selective Service System terminated the applicant from enrollment in the Reconciliation Service Program for failure to complete his required period of alternate service.  The applicant quit his approved job and failed to respond to correspondence related to his Reconciliation Service Program failure.

10.  The President of the American Federation of Government Employees Local 3930 states he has known the applicant for 34 years both personally and professionally.  He is impressed with the applicant's eagerness to help others and his willingness to listen.  He supports the applicant's efforts to upgrade his discharge and notes the applicant has and is suffering both mentally and physically as a result of his service.

11.  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 restitution program specifically designed for former Soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973.  Upon successful completion of the alternate service, former members would be granted a clemency discharge by the President of the United States, thus restoring his or her affected civil rights.  The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration.  Soldiers who were AWOL entered the program by returning to military control and accepting a discharge in lieu of trial by court-martial.  It identified three categories of persons and permitted them to apply for a clemency discharge.  Those categories were:

* civilian fugitives who were draft evaders
* members of the military who were still AWOL
* former military members who had been discharged for desertion, AWOL, or missing movement

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the policies and procedures for enlisted personnel separations.  It outlines the criteria for characterization of service as follows:  

	a.  an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty;
	
	b.  a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge;  

	c.  an under other than honorable conditions (UOTHC) discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier; and 

	d.  provides 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 UOTHC is normally considered appropriate.  

13.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states when he was given orders to return to Vietnam he was afraid to return and this fear was the cause of his misconduct.  He served the country honorably including a tour in Vietnam and has not been in any trouble since his discharge.

2.  The discharge proceedings are presumed to have been conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

3.  The applicant's record shows he first went AWOL when he received orders to Vietnam and remained absent for over three months.  The applicant could have been discharged with a punitive discharge or under other than honorable conditions for this AWOL offense.

4.  He had three additional short periods of AWOL (two while serving in Vietnam) followed by the extensive period of AWOL that resulted in his discharge.

5.  In addition to the AWOL's, the applicant also failed to complete the alternative service agreement that he agreed to at the time of his discharge. 

6.  The applicant's 11 months in Vietnam was not so meritorious as to outweigh the 1,162 days of AWOL and the rest of his misconduct.

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)                                         AR20110010414



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ABCMR Record of Proceedings (cont)                                         AR20110010414



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