IN THE CASE OF:	  

		BOARD DATE:  22 May 2012

		DOCKET NUMBER:  AR20110020823 


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 his undesirable discharge be upgraded to a general discharge.

2.  The applicant states after completing a tour of duty in Korea he was assigned to Fort Dix, NJ.  His assignment to escort the body of an 18 year old Soldier killed in action in Vietnam left him traumatized and mentally depressed for a few days.  Before returning to base he detoured to Houston to visit his sick mother.  Upon his return to base he received nonjudicial punishment (NJP).  He received a reduction in rank and felt he would not be granted permission to see his mother.  He then returned to Houston without permission.  He wanted to return to duty, but he was afraid that he would go to jail.  In January of 1975 he was granted amnesty by President Ford and the Congress to report back to the military and swear allegiance to the United States of America.  He was sworn back into the military and was released about a week later under the assumption that he would receive an honorable discharge under general conditions because of the amnesty act.  He applied for a GI Bill loan in 1977 and was granted the loan under his assumed honorable discharge.  He was able to buy two houses with this loan.  He recently applied for a Department of Veterans Affairs (VA) card in the summer of 2011 and he was denied because he discovered that he has a dishonorable discharge.

3.  The applicant provides no additional 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.  He was inducted into the Army of the United States on 3 November 1967.  He immediately enlisted in the Regular Army on 8 November 1967 for a period of 
3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 76V (Materiel Storage and Handling Specialist).  He was promoted to specialist four/pay grade E-4 on 22 December 1968.  He immediately reenlisted on 10 January 1969 for a period of 3 years.

3.  On 17 March 1969, he accepted NJP for failure to go at the time prescribed to his appointed place of duty.  His punishment included a reduction to private first class/pay grade E-3, suspended until 1 April 1969.

4.  After completing a tour of duty in Korea, he was assigned to Company C, Special Troops at Fort Dix, NJ on 17 June 1969.

5.  On 6 August 1969, he accepted NJP for:

* being absent without leave (AWOL) from on or about 4 July to on or about 1 August 1969
* failing to go at the time prescribed to his appointed place of duty

His punishment included a reduction to private first class.  

6.  On 15 January 1970, he was tried before a special court-martial.  He pled not guilty and was found guilty of being AWOL from on or about 14 August 1969 to on or about 2 January 1970.  He was sentenced to 3 months confinement and reduction to private/pay grade E-1.  The convening authority suspended for 
3 months that portion of his sentence adjudging confinement for 3 months.

7.  He departed AWOL on 18 January 1970 and was apprehended by the Federal Bureau of Investigation on 18 January 1972.

8.  On 1 February 1972, he again departed AWOL.

9.  A letter, dated 24 September 1974, Subject: Participation in the program established by Presidential Proclamation 4313, 16 September 1974 notified him that he was eligible for the program and directed him to proceed and report to Fort Benjamin Harrison, IN on or about 2 October 1974.  

	a.  He would be given an opportunity to:

* request a discharge for the good of the service in accordance with 	existing Department of Defense regulations
* reaffirm his allegiance to is country
* pledge to perform alternate service for a period not to exceed 
   24 	months

	b.  Prior to undertaking the above obligations he would be afforded an opportunity to consult with military lawyer-counsel, who would advise him regarding the adverse nature and effect of receiving an undesirable discharge.

	c.  Upon completion of the above procedures he would be issued an undesirable discharge.

	d.  If he refused to execute the request, the reaffirmation, or the pledge he would not be eligible to participate in the program and would be processed in accordance with procedures in effect at the time, which could have included trial by court-martial.

10.  In an undated statement, after having been told by legal counsel about the President's Clemency Program, he elected to:

* sign a Reaffirmation of Allegiance 
* sign a Pledge of Public Service 
* accept an undesirable discharge

11.  The Joint Alternate Service Board established by Presidential Proclamation 4313 reviewed the applicant's official records and determined that he would be required to serve 21 months of alternate service.


12.  On 5 October 1974, he reaffirmed his allegiance to the United States of America and pledged to faithfully serve 21 months alternate service.  

13.  On 5 October 1974, after having been afforded the opportunity to consult with military counsel, the applicant voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation 4313.  He understood his absence was characterized as a willful and persistent unauthorized absence for which he was subject to trial by court-martial for a violation of the Uniform Code of Military Justice and could lead to the imposition of a bad conduct or dishonorable discharge.  

14.  He understood that he would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he:

* would be deprived of all service benefits
* would be ineligible for all benefits administered by the VA
* may be deprived of his rights and benefits as a veteran under both Federal and State laws
* may encounter substantial prejudice in civilian life because of an undesirable discharge

15.  He also understood:

* he must report to his State Director of Selective Service for alternate service within 15 days of discharge
* satisfactory completion of such service would be acknowledged by issuance of a Clemency Discharge Certificate
* such certificate would not alter his ineligibility for any benefits predicated on his military service

16.  On 5 October 1974, he was discharged under the provisions of Presidential Proclamation 4313.  He had completed 3 months and 16 days of net active service that was characterized as under other than honorable conditions.  He received an Undesirable Discharge Certificate.  He had 995 days time lost before his normal expiration of term of service and 991 days after his normal expiration of term of service.

17.  In a letter, dated 16 June 1975, the National Headquarters Selective Service System stated the applicant was terminated from enrollment in the Reconciliation Service Program and he did not complete his required period of alternate service. He failed to report for scheduled interviews and he failed to respond to official correspondence.
18.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

19.  Presidential Proclamation 4313 was issued on 16 September 1974 by President Ford.  It identified three categories of persons and permitted them to apply for 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.

Those individuals who were AWOL were afforded the opportunity to return to military control and accept an undesirable discharge or stand trial.  Those who elected to earn a clemency discharge (AWOL’s and discharged members) could be required to perform up to 24 months alternate service.  Upon successful completion a clemency discharge would be issued.  (NOTE: In any event, the clemency discharge did not affect the individual’s underlying discharge, and did not entitle him to any VA benefits.)

20.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could have been issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  He assumed he would receive a discharge under honorable conditions.  However, he acknowledged he was aware of the consequences of his request for discharge under Presidential Proclamation 4313.  He specifically indicated in his request for discharge that he understood he would be:

* would be deprived of all service benefits
* would be ineligible for all benefits administered by the VA
* may be deprived of his rights and benefits as a veteran under both Federal and State laws
* may encounter substantial prejudice in civilian life because of an undesirable discharge

Therefore, this no basis to support his assumption.  He was fully aware of the consequences of his request for discharge.

2.  He reaffirmed his allegiance to the United States and pledged to faithfully serve 21 months of alternate service.  However, he failed complete his 
21 months of alternate service.

3.  He had 995 days time lost before his normal expiration of term of service and 991 days after his normal expiration of term of service.  This clearly shows his service since his reenlistment on 10 January 1969 to be unsatisfactory.

4.  In view of the above, there is an insufficient basis to upgrade his undesirable discharge to a general discharge under honorable conditions.

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)                                         AR20110020823



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ABCMR Record of Proceedings (cont)                                         AR20110020823



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