IN THE CASE OF:	  

		BOARD DATE:  2 February 2012

		DOCKET NUMBER:  AR20110020876 


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.

2.  The applicant states he had 18 months of honorable service then he went absent without leave (AWOL) several times.  He always came back on his own and did stockade time each time.  He couldn't deal with stateside rules and regulations.  It wasn't the same as Vietnam; all the things he lived through were always on his mind.  He was given the choice of staying in or taking an undesirable discharge.  He was not offered mental health counseling.  If he had been, he probably would have elected to stay in the Army.

3.  The applicant provides a DD Form 1953A (Clemency Discharge) and a DD Form 258A (Undesirable 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's records show he enlisted in the Regular Army on 31 May 1963 and held military occupational specialty (MOS) 94A (Cook).  He served in Vietnam from 19 October 1963 to 18 October 1964 while assigned to the 121st Aviation Company.

3.  On 29 April 1964, while in Vietnam, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully appropriating the personal property of a Vietnamese native. 

4.  On 2 March 1965, he received NJP under the provisions of Article 15, UCMJ, for being AWOL from his assigned unit from 4 to 15 February 1965.

5.  On 12 August 1965, he received NJP under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty.

6.  On 24 August 1965, he received NJP under the provisions of Article 15, UCMJ, for swimming in an unauthorized area.

7.  On 4 November 1965, he was convicted by a summary court-martial of one specification each of being AWOL from 1 to 6 October 1965 and from 8 to 13 October 1965.

8.  On 9 November 1965, he received NJP under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty on two separate occasions.

9.  On 10 January 1966, he was convicted by a special court-martial of being AWOL from 14 November to 16 December 1965.

10.  On 3 June 1966, he was convicted by a special court-martial of attempting to escape from lawful confinement on 27 May 1966.

11.  On 28 September 1966, he received NJP under the provisions of Article 15, UCMJ, for being AWOL from 26 to 27 September 1966.

12.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However the DD Form 214 (Armed


Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged on 18 October 1966, under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), for unfitness, with his service characterized as under conditions other than honorable and he was issued an Undesirable Discharge Certificate.  He completed 2 years, 6 months, and 28 days of creditable active service with 294 days of time lost due to AWOL and confinement.  

13.  His records contain DD Form 215 (Correction to DD Form 214), dated 10 December 1975, wherein it added to item 32 (Remarks) of his DD Form 214 the entry "DD Form 1953A, Clemency Discharge issued pursuant to Presidential Proclamation Number 4314."

14.  The applicant provides a Clemency Discharge Certificate wherein it states "This certificate is issued on the 10th day of December 1975 in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation Number 4314, 16 September 1974."

15.  Army Regulation 635-212, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness.  It provided that individuals would be discharged by reason of unfitness when it was clearly established that despite attempts to develop him as a satisfactory Soldier, further effort was unlikely to succeed, rehabilitation was impracticable, and the individual was not amenable to rehabilitation.  This regulation prescribed that an individual discharged for unfitness would be furnished an undesirable discharge, except when an honorable or a general discharge was warranted by the particular circumstances.

16.  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 public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.  Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge.  Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge.  The clemency discharge did not affect the individual’s underlying discharge and did not entitle him to any Department of Veterans Affairs benefits.  Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge.  

17.  Army Regulation 635-200 (Personnel Separations Enlisted Personnel), 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.

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on numerous occasions for being AWOL, failing to go to his appointed place of duty, and various other violations of the UCMJ.   In addition, he received court-martial convictions for being AWOL on two other occasions and for attempting to escape from confinement.   Accordingly, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-212, for unfitness.

2.  In the absence of evidence to the contrary, it is presumed that his separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.  

3.  Although the applicant's discharge was upgraded to a clemency discharge in 1975, under Presidential Proclamation 4314 this clemency discharge did not affect his underlying discharge and did not change the characterization of his service.

4.  In view of the foregoing, he is not entitled to an honorable or a general discharge.





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)                                         AR20110020876





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ABCMR Record of Proceedings (cont)                                         AR20110020876



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