IN THE CASE OF:	  

		BOARD DATE:	    23 May 2012 

		DOCKET NUMBER:  AR20110023411 


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 honorable.

2.  The applicant states:

* the "President Act of 1984" upgraded all discharges to honorable
* he is applying for Department of Veterans Affairs (VA) benefits

3.  The applicant provides no documentary evidence.

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 21 February 1968 for a period of 3 years.  He completed his training and was awarded military occupational specialty (MOS) 67N (UH-1 Helicopter Repairman) and later MOS 11D (Armor Intelligence Specialist).  He was honorably discharged on 25 November 1969 for immediate reenlistment.  He reenlisted on 26 November 1969 for a period of 
6 years.  He served in Vietnam from 29 November 1970 to 18 November 1971.     

3.  On 28 January 1972, nonjudicial punishment (NJP) was imposed against the applicant for absenting himself from his appointed place of duty (two specifications).

4.  On 30 May 1972, NJP was imposed against the applicant for being absent without leave (AWOL) from 16 February 1972 to 15 May 1972.

5.  On 20 June 1972, NJP was imposed against the applicant for failing to go at the prescribed to his appointed place of duty.

6.  Records show he was AWOL from 2 August 1972 to 15 October 1972.

7.  His record is void of the specific facts and circumstances surrounding his discharge.  However, his discharge orders and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) show he was discharged on 27 November 1972 for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.  He completed a total of 4 years, 2 months, and 24 days of total active service with 195 days of lost time.

8.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.

9.  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, 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.

10.  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.

11.  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.

12.  There is no information available on the "President Act of 1984."  The applicant may be referring to Presidential Proclamation 4313, dated 16 September 1974, and issued by President Gerald Ford.

13.  Presidential Proclamation 4313 (PP 4313) affected three groups of individuals.  One group was members of the Armed Forces who were in an unauthorized absence status. These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under PP 4313 or to stand trial for their offenses and take whatever punishment resulted.  For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform.  If they completed the alternate service satisfactorily, they would be entitled to receive a Clemency Discharge.  The Clemency Discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA.

14.  A Presidential Memorandum was issued by President Ford on 19 January 1977 (sometimes referred to as PP 4313 Extension).  This memorandum mandated the issuance of a general discharge to individuals who had: (1) applied for consideration under PP 4313; (2) been wounded in action or decorated for valor; and (3) records free of any compelling reason to deny relief.  This was a mandate to the ADRB from the President and was to be applied by the ADRB without any applications from the affected individuals.  Whether the individuals had performed alternate service was not an issue to be considered. 



15.  The Department of the Army Special Discharge Review Program (SDRP) was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program."  It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary.  The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case.  An individual who had received a punitive discharge was not eligible for consideration under the SDRP.  Absentees who returned to military control under the program were eligible for consideration after they were processed for separation.  Individuals could have their discharges upgraded if they met any one of the following criteria:  wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or excused there from in accordance with Presidential Proclamation 4313 of 16 September 1974.  Compelling reasons to the contrary to deny discharge upgrade were desertion/absent without leave in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law.  

16.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the "President Act of 1984" upgraded all discharges to honorable.  However, there is no information available on such an act.  A discharge upgrade is not automatic.  In addition, neither PP 4313, the Presidential Memorandum issued by President Ford on 19 January 1977, nor the "Carter Program" applied in his case, because he never applied under PP 4313.  

2.  He contends he is applying for VA benefits.  However, a discharge is not changed for the purpose of obtaining VA benefits.

3.  It appears he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary 


requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.

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

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)                                         AR20110023411





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ABCMR Record of Proceedings (cont)                                         AR20110023411



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