IN THE CASE OF:	  

		BOARD DATE:	    20 March 2012

		DOCKET NUMBER:  AR20110018040 


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 general discharge under honorable conditions to an honorable discharge and removal of the time lost after his expiration of term of service (ETS) from his records.

2.  The applicant states he tried to enlist when he was 30 years of age to complete his service obligation, but he was told he did not meet the age requirements.  He also tried to join the Army National Guard.  He tried to complete his time with several Federal agencies, but nobody would accept him.  He further states he wanted to go on active duty once he adjusted from his Vietnam service, but there was no help available to him when he returned from Vietnam.  He would have made the Army a career if he had been given the time to readjust to normal life after his return from Vietnam.  If his discharge is upgraded, he would like the Department of Veterans Affairs (VA) notified.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and DD Form 215 (Correction to DD Form 214).

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 25 July 1969 and he was trained in military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  He served in Vietnam from on or about 12 January 1970 to on or about 1 December 1970.  He was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Bronze Star Medal, and one overseas service bar.

4.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 19 February 1971 for being absent without leave (AWOL) from 16 February 1971 to 18 February 1971.

5.  His records contain three DA Forms 188 (Extract Copy of Morning Report), dated 16 April 1971.  These forms show he was:

* AWOL from 2 April 1971 to 15 April 1971
* AWOL on 1 June 1971 and dropped from the rolls (DFR) on 30 June 1971
* DFR on 15 September 1971

6.  His records contain a DD Form 458 (Charge Sheet), dated 25 August 1971.  This form shows he was charged with two specifications of AWOL from 2 April 1971 to 15 April 1971 and 1 June 1971 to 24 August 1971.

7.  His records contain an undated DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence).  This form shows he was AWOL/DFR from 15 September 1971 until 16 September 1974 when he returned to military control.

8.  On 19 September 1974, he submitted a voluntary request for amnesty to participate in the President's Clemency Program.

	a.  He acknowledged he was making the request of his own free will and had not been subjected to coercion by any person.  He acknowledged that by submitting this request the charge against him for violation of Article 86 (AWOL occurring between 4 August 1964 and 28 March 1973) was outstanding.  He requested a delay in the processing of the charge until the charge was withdrawn by the convening authority.

	b.  He acknowledged that by requesting to participate in the President's Clemency Program he understood he would be issued an undesirable discharge, may be required to perform alternative service as determined by the Joint Alternative Service Board, and he would be required to reaffirm his allegiance to the United States of America.

	c.  He acknowledged counsel advised him of his options to be tried by court-martial and the maximum permissible punishment for the offenses authorized under the UCMJ.  He was also advised about the President's Clemency Program and the possible effects of an undesirable discharge.

9.  His records contain an undated memorandum from Headquarters, U.S. Army Personnel Control Facility, Fort Knox, KY, which states the court-martial charge and specification against the applicant were withdrawn by order of the convening authority because he submitted a written request to participate in the President's Clemency Program for military deserters.

10.  On 25 September 1974, he signed a reaffirmation of allegiance to the United States and pledged to complete 14 months of alternative service to complete his service obligation.

11.  On 25 September 1974, he voluntarily requested discharge for the good of the service under the provisions of Presidential Proclamation Number 4313, dated 16 September 1974.

	a.  He acknowledged his absence was characterized as a willful and persistent unauthorized absence which rendered him triable under the UCMJ and could lead to the imposition of a bad conduct or dishonorable discharge and that he was making the request for discharge of his own free will without coercion by any person.

	b.  He acknowledged he had been afforded the opportunity to consult with military counsel, he understood he had the right to consult with civilian counsel at his own expense, and he had been fully advised by counsel about the nature of his offenses for which he could be tried and the maximum permissible punishment which could be imposed.

	c.  He acknowledged he understood he would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, he had been advised and understood the adverse nature of such a discharge and the possible consequences.

	d.  He acknowledged that as a result of such a discharge he would be deprived of all service benefits and would be ineligible for the benefits administered by the VA, he could be deprived of his rights and benefits as a veteran under Federal and State laws, and he understood he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

	e.  He acknowledged he understood he had 15 days from the receipt of his Undesirable Discharge Certificate to report to his State Director of Selective Services to arrange for performance of alternative service, that satisfactory completion of the alternative service would be acknowledged by the issuance of a Clemency Discharge Certificate and the Clemency Discharge Certificate would not alter his ineligibility for any benefits predicated upon his military service.

	f.  He acknowledged he had been advised of the nature of his offenses for which he could be tried, the maximum permissible punishment, the effects of an undesirable discharge, the nature and effects of his pledge to perform alternative service, and the procedures and rights available to him.

12.  His service record is void of the complete separation packet.  However, his records contain a duly-constituted DD Form 214 that shows he was discharged for the good of the service by reason of willful and persistent unauthorized absence on 25 September 1974 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, 8 months, and 15 days of creditable active military service and had accrued 70 days of lost time prior to his normal ETS and 1,486 days after his ETS.  The DD Form 214 also contains an entry in item 27 (Remarks) that indicates he agreed to serve 14 months of alternate service.

13.  On 15 March 1978, he was notified that the Army Discharge Review Board (ADRB) considered his request under the Department of Defense (DOD) Special Discharge Review Program (SDRP) and directed that his undesirable discharge be upgraded to a general discharge under honorable conditions.  Accordingly, the applicant was reissued a DD Form 214 that shows he was discharged under honorable conditions effective 25 September 1974.

14.  In an undated letter, the applicant was notified that the ADRB reviewed his previously-upgraded discharge as required by Public Law 95-126.  Accordingly, his upgraded discharge under the DOD SDRP was affirmed.  The applicant was issued a DD Form 215, dated 12 July 1978, to reflect this action.

15.  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 VA.  The ADRB adopted the policy that a clemency discharge would be considered by a board in its deliberations, but the discharge per se did not automatically require relief be granted.

16.  The DOD 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.

17.  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.

18.  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.

19.  Army Regulation 635-200 (Personnel Separations) 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, the type of discharge normally given under the provisions of this chapter, the loss of VA 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 to an individual who was discharged for the good of the service.

20.  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.

21.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and provides the individual with documentary evidence of his or her military service.  It is important that information entered on the form should be complete and accurate.  Item 21 (Time Lost) of the version in effect at the time shows time lost under Title 10, U.S. Code, section 972.  The regulation requires that the dates of time lost during the current enlistment will be entered on the DD Form 214.  For enlisted personnel, the inclusive periods of time lost to be made good under Title 10, U.S. Code, section 972, and periods of non-inclusive time after ETS will be entered.  Lost time under Title 10, U.S. Code, section 972, is not creditable service for pay, retirement, or veterans' benefits; however, the Army preserves a record of it (even after it has been made up) to explain which service between the date of entry on active duty and the date of separation is creditable service.



DISCUSSION AND CONCLUSIONS:

1.  After review of the applicant's case, the ADRB decided to affirm the discharge upgrade under Public Law 95-126 and the established uniform standards and upgraded his discharge under other than honorable conditions to a general discharge under honorable conditions.

2.  His record reveals an extensive history of AWOL and one instance of NJP.  Further, his record confirms he accrued a combined total of 1,556 days of lost time due to AWOL.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

3.  By law and regulation, periods of AWOL are considered lost time and the time is not creditable service for pay, retirement, or veterans' benefits.  The lost time is required to be listed on the DD Form 214 even if the periods of lost time were made up.  Since both entries are correctly shown on his DD Form 214, he is not entitled to the requested relief.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110018040



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ABCMR Record of Proceedings (cont)                                         AR20110018040



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