BOARD DATE:	7 August 2012  

		DOCKET NUMBER:  AR20120001274 


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 an honorable discharge.

2.  He states his discharge only reflects a small portion of his military service.  He had substance abuse issues, mental health problems, and was immature at the time.  What his service does not reflect is:

* an honorable discharge he received from a prior period of service
* a clemency discharge he was issued pursuant to Presidential Proclamation Number 4313
* his 20 months of service in Vietnam during six major campaigns
* the Army Commendation Medal (ARCOM) he earned in Vietnam
* his agreement to serve time in the stockade after he turned himself in to military authorities
* his request to be sent to rehabilitation in order to stay in the Army

3.  He voluntarily went to rehabilitation after his discharge from the service and since that time he:

* lived a very respectable life
* had no problems with law enforcement
* has been gainfully employed and now drives a school bus
* received a full background check
* has been a creditable and responsible citizen

4.  He contends the cloud of a "bad paper discharge" still haunts him and he would like to see it corrected before he dies.

5.  The applicant provides:

* pages 2 and 4 of his DA Form 20 (Enlisted Qualification Record)
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 9 July 1968
* his DD Form 215 (Correction to DD Form 214) for the period ending 24 November 1971
* three 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.  He enlisted in the Regular Army on 17 July 1967.  He was honorably discharged on 9 July 1968 for the purpose of immediate reenlistment.  He reenlisted on 10 July 1968 for a period of 6 years.

3.  His DA Form 20 shows:

* he completed a tour of duty in Vietnam from 25 October 1968 through 31 May 1970
* the highest rank/pay grade he attained was sergeant/E-5 while serving in Vietnam
* he was awarded or authorized the:

* National Defense Service Medal
* Vietnam Service Medal
* ARCOM
* Republic of Vietnam Campaign Medal with Device (1960)

* he was absent without leave (AWOL) during four separate periods between 5 January and 13 September 1971 for a total of 228 days
* he was in military confinement from 17 September to 10 November 1971

4.  His record contains two DA Forms 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)).  These documents show he was administered nonjudicial punishment (NJP) for being AWOL from 28 September to 16 October 1968 and from 5 January to 1 February 1971.

5.  He appealed the NJP he received for the 5 January to 1 February 1971 AWOL offense; however, the appellate authority denied his appeal and determined the punishment was appropriate.

6.  A DD Form 458 (Charge Sheet), dated 22 June 1972, shows he was charged with being AWOL from 5 April to 14 September 1971.

7.  On 8 October 1971, he voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  The applicant stated he:

* was making the request of his own free will and had not been subjected to coercion whatsoever by any person
* understood he could be discharged under other than honorable conditions and furnished with an Undesirable Discharge Certificate
* understood that as the result of issuance of such a discharge, he could be deprived of many or all Army benefits he might be eligible for, he might be ineligible for many or all benefits administered by the Veterans Administration (VA)
* might be deprived of his rights and benefits as a veteran under both Federal and State laws
* understood he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge

8.  He consulted with counsel and was fully advised of the nature of his rights under the UCMJ and submitted a statement on his own behalf.  In his statement he listed his periods of AWOL and the punishments he received.  He added that he felt he was not "restorable" for Army life and wished to resign for the good of the Army and for his own good.

9.  The applicant's chain of command unanimously recommended approval of his request for discharge and issuance of an Undesirable Discharge Certificate.

10.  On 9 November 1971, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and directed his reduction to the rank/pay grade of private/E-1 and issuance of an Undesirable Discharge Certificate.

11.  His DD Form 214 for this period is not legible; however, his record contains U.S. Army Training Center Engineer and Fort Leonard Wood Special Order Number 327, dated 23 November 1971.  This order shows he was discharged under other than honorable conditions on 24 November 1971 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

12.  His record contains a letter, dated 18 November 1974, indicating the applicant had applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  After careful review, the ADRB determined he was properly discharged and denied his request for an upgrade.

13.  A letter, dated 18 March 1976, shows he was awarded a clemency discharge pursuant to Presidential Proclamation 4313, dated 16 September 1974.  It shows he was issued a DD Form 1953A (Clemency Discharge) and a DD Form 215.

14.  The DD Form 215 he was issued added the entry, "DD Form 1953A Clemency Discharge issued in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation No 4313" to item 27 (Remarks) of his DD Form 214.

15.  The applicant's records show he requested a personal appearance before the ADRB for a change in the type and nature of his discharge.  He was granted the personal appearance and a letter, dated 14 August 1981, shows that after careful review of his military records, hearing his personal testimony, and consideration of all other available evidence, the ADRB denied his request.

16.  He provided three letters of support which collectively show he:

* served honorably in Vietnam
* has been a man of integrity and of loyalty
* is a loving husband and good father
* has dedicated his life to serving the Lord and works in various capacities in the church
* overcame many of life's difficulties, including alcoholism


* is a good man who does not regret his time in the service
* received an honorable discharge

17.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to members of the Armed Forces who were in an unauthorized absence status and certain former Soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.

18.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provided that a member who had 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 in lieu of trial by court-martial at any time after the charges had been preferred.  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.

	b.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service, but the separation authority could have directed a general discharge or an honorable discharge if such were merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would have been improper.

	c.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	d.  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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was immature, had mental health problems, and had substance abuse issues which ultimately caused his undesirable discharge.  He further believes his discharge should be upgraded due to his service in Vietnam, his personal awards, the fact that he self-enrolled in rehabilitation subsequent to his discharge, and has become an upstanding citizen.

2.  His contentions are noted.  His entire record of service was reviewed and his post-service achievements and conduct were also taken into consideration.  His record shows he was AWOL on numerous occasions and was administered NJP for at least two of his AWOL offenses.

3.  Notwithstanding the above, the evidence further shows the applicant was charged with an offense for which a bad conduct or dishonorable discharge could have been imposed.  Rather than face trial by court-martial, he opted to submit a request for discharge for the good of the service.  His request was approved and he was discharged accordingly.

4.  The evidence further shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows the applicant was aware of that at the time he requested discharge.  The reason for discharge and the characterization of service were both proper and equitable.

5.  Under the provisions of Presidential Proclamation 4313, the applicant was granted a clemency discharge which restored his civil rights but did not change the underlying reason for discharge.  His clemency discharge was considered a "neutral" discharge.

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 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)                                         AR20120001274



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120001274



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1