IN THE CASE OF:	  

		BOARD DATE:  19 July 2012

		DOCKET NUMBER:  AR20120000287 


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 upgrade of his under other than honorable conditions discharge to at least a general, under honorable conditions discharge.

2.  The applicant states, in effect, he accepted a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, which was also used for those who were opposed to the war in Vietnam.  He attests that those who didn't serve a single day were pardoned by Presidents of the United States, but those who served, even if partially, were left out with no closure in a time of turmoil in our country.  Knowing Presidents Nixon, Ford, Carter, and Clinton all offered some form of forgiveness/clemency to those who refused to serve and left the country to avoid military service makes it difficult for someone who enlisted, tried to serve and found himself in a difficult situation.

3.  He further states he is requesting a discharge upgrade to general, under honorable conditions because when he went absent without leave (AWOL) his family was in dire straits and in need of his help.  He tried working with his chain of command and was eventually forced to choose between the Army and his family.  He had requested and was trying to process a hardship discharge.  His father had gathered evidence in his support, but he decided to take matters into his own hands and accepted a chapter 10 discharge because it was the fastest way for him to be released and get home.  He believes an upgrade to a general or an honorable discharge at this point in time is valid and should be granted in light of what previous Presidents have done in the past.

4.  The applicant provides seven letters of support.

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 3 October 1968.  He completed initial entry training and was awarded military occupational specialty 52B (Power Generator Equipment Operator).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 18 February 1969 for wrongfully disobeying a lawful order given by his First Sergeant.

4.  Special Court-Martial Order Number 1668, issued by Headquarters,
Troop Command, U.S. Army Training Center, Fort Ord, CA, shows the applicant was found guilty of being AWOL from 17 March until 19 July 1969.

5.  A DD Form 458 (Charge Sheet), dated 27 December 1973, shows court-martial charges were preferred against the applicant for violation of Article 86 of the UCMJ by departing his unit in an AWOL status on 17 November 1969 and remaining so absent until on or about 26 December 1973, a period of 4 years, 1 month, and 10 days (1,501 days).  His chain of command recommended trial by general court-martial.

6.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.

7.  On 27 December 1973, following counseling, the applicant submitted a voluntary written request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant submitted a statement in his own behalf.

8.  On 27 December 1973, the applicant rendered a handwritten statement in his own words to support his request for a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He attested, in effect, that he was a nervous person who worried about a lot of things.  He had not been able and would not be able to adjust to the military lifestyle.  He stated his parents were also nervous people and were seeing doctors for nervousness.  His parents lived on a small fixed income and he desired to get out of the Army so he could help them.  He stated if he was to return to duty he would probably go AWOL again after a few days because it was like some kind of sickness that he could cure himself outside the military.  He added that during his period of AWOL, he was convicted of possession of marijuana which resulted in a $150.00 fine and 15 days of incarceration.

9.  Based upon his excessive period of AWOL and his civil conviction for drug possession, his company, battalion, and brigade commanders recommended approval of his request for discharge for the good of the service with the issuance of an undesirable discharge.

10.  On 1 February 1974, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant's reduction to the lowest enlisted grade and issuance of an Undesirable Discharge Certificate.

11.  On 3 February 1974, the applicant rendered a statement wherein he proclaimed "I know what a hardship discharge is and I do not wish to file for one.
I want out of the service for the good of the service and for the good of my own life."  On 7 February 1974, the applicant was discharged accordingly.


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

13.  The applicant provides seven letters written by his father; his pastor; the Chairman of the Tulare, CA Chapter of the American GI Forum of the U.S.; two neighbors; an assistant hospital administrator; and his father's coworker from 10 to 13 February 1969.  These letters were rendered in support of the applicant's father's request for the applicant to receive a hardship discharge.  The authors corroborate the facts that the applicant's parents lived on a meager fixed income, were experiencing financial hardship, and were in poor health.  They each appealed to the applicant's chain of command to grant him a hardship discharge which would enable him to move back home to help his parents.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

15.  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.

16.  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.

17.  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 VA benefits.  Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge.  If a participant of the program failed to complete the period of alternative service the original undesirable characterization of service would be retained.

18.  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.

19.  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.  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 from completing alternate service in accordance with PP 4313 of 16 September 1974.  Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10 to avoid a trial by court-martial which may have resulted in a felony conviction.

3.  Evidence shows that during the processing of his discharge request, he acknowledged his understanding of the hardship discharge process, but declined pursuing that option in favor of severing ties with the Army as soon as possible.  

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of both AWOL and a civil drug possession conviction the applicant was not eligible for consideration for clemency under the provisions of Presidential Proclamation Number 4313.

6.  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)                                         AR20120000287





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ABCMR Record of Proceedings (cont)                                         AR20120000287



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