IN THE CASE OF:	  

		BOARD DATE:	  4 October 2012

		DOCKET NUMBER:  AR20120005792 


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 (UD) of 31 January 1975 be upgraded to a general, under honorable conditions discharge (GD).  

2.  The applicant states after completing two tours in the Republic of Vietnam (RVN), he returned home and found out his first wife, while working at Fort Campbell, Kentucky, was committing adultery while he was away.  He had his assignment changed to Fort Dix, New Jersey and after divorcing his first wife, he married his second and current wife to whom he has been married for 42 years and started a family. 

3.  The applicant states upon receiving orders for an unaccompanied tour in Korea and failing to have the assignment changed, he moved his family to New Hampshire near his parents.  However, he feared if he went on the assignment to Korea he could lose his second wife.  He claims although this fear now appears irrational in hindsight, after what he had been through with his first wife he decided to go absent without leave (AWOL) and moved to California with his family.  He and his family moved back to New Hampshire in 1973, and when the President offered an amnesty program in 1975, he turned himself in.  

 4.  The applicant states he worked for the same company for 30 years and retired in 2005, and while he served his country he did it honorably.  He states he wishes he had not gone AWOL.  

5.  The applicant provides a self-authored statement and a statement from his wife in support of his request.  
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.  After serving in the U.S. Army Reserve (USAR) and Army National Guard (ARNG) between April 1959 and April 1962, the applicant initially enlisted in the Regular Army on 27 September 1962, and was trained in and awarded military occupational specialty (MOS) 31F (Field Communications Chief).   

3.  On 12 July 1963, a special court-martial (SPCM) found the applicant guilty of violating Article 134 of the Uniform Code of Military Justice (UCMJ) by wrongfully possessing marijuana.  The resulting sentence included conferment at hard labor for six months.  

4.  On 13 January 1966, the applicant was discharged for the purpose of immediate reenlistment with a general, under honorable conditions discharge (GD).  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he completed a total of 3 years and 12 days of creditable active military service and had accrued 95 days of time lost due to confinement at the time of his discharge.  

5.  On 14 January 1966, the applicant reenlisted for 3 years.  His record shows that during this enlistment, the applicant served in the RVN from 6 June 1966 through 8 January 1968.  

6.  On 19 December 1968, the applicant was honorably discharged for the purpose of immediate reenlistment.  The DD Form 214 he was issued at the time shows he completed 1 year, 7 months, and 3 days of foreign service in the RVN and earned 3 Overseas Service Bars, National Defense Service Medal, RVN Campaign Medal with Device, Vietnam Service Medal, and Combat Infantryman Badge (CIB).  

7.  On 20 December 1968, the applicant reenlisted and began the period of service under review.  

8.  On 10 February 1971, the applicant failed to report for an overseas assignment and was declared AWOL.  He remained away for 1,540 days until returning to military control on 29 January 1975.  

9.  On 16 January 1975, the Commander, U.S. Army Enlisted Records Center, Fort Benjamin Harrison, responded to the applicant’s request to participate in the program established by Presidential Proclamation 4313 (PP 4313) which established a program for clemency for individuals who were AWOL, DFR, or who missed movement during the time frame from 4 August 1964 through 28 March 1973 and who had no offenses other than those listed.  The applicant was also informed of the following participation requirements.   

10.  The applicant returned to military control for discharge processing at Fort Benjamin Harrison, and completed a reaffirmation of allegiance and pledged to complete alternate service.  He also completed a voluntary request for discharge for the good of the service pursuant to PP 4313.  He confirmed that prior to completing his discharge request he had been afforded the opportunity to consult with military counsel.  He also confirmed he would receive an undesirable discharge and he understood the consequences of receiving this discharge.

11.  The applicant's discharge was approved, and on 31 January 1975, he was discharged under the provisions of PP 4313 with an undesirable discharge.  The DD Form 214 he was issued at the time shows he completed 1 year, 10 months, and 17 days of creditable active military service during the enlistment period under review and had accrued 1,540 days of time lost due to AWOL.  It also verified he agreed to serve 4 months of alternate service pursuant to PP 4313.

12.  On 14 August 1975, the Selective Service System Reconciliation Service Division Manager notified the Commander of the Reserve Component Personnel and Administration Center that the applicant had been terminated from the reconciliation service program based his failure to complete his required period of alternate service.  

13.  PP 4313, dated 16 September 1974, announced a clemency program designed to provide deserters with an opportunity to work their way back into American society.  This proclamation pertained to all individuals who were carried administratively as deserters if their last period of AWOL was between 4 August 1964 and 28 March 1973.  Under this program, eligible enlisted deserters were offered the opportunity to request an undesirable discharge.

14.  Successful completion of alternate service entitled a participant to receive a Clemency Discharge Certificate.  Clemency discharges issued pursuant to PP 4313 did not impact the underlying discharge a member received and did not entitle the individual to any benefits administered by the Department of Veterans Affairs (VA).  The Army Discharge Review Board adopted the policy that a clemency discharge would be considered by a board in its deliberations, but that the discharge per se did not automatically require relief be granted.

15.  On 8 October 1977, Public Law 95-126 added 180 days of continuous absence, if it was used as the basis for an under other than honorable conditions discharge, to that list of reasons for discharge which acted as a specific bar to eligibility for benefits administered by the VA.  It also required that uniform discharge review standards be published that were applicable to all persons administratively discharged or released from active duty under other than honorable conditions.  It further required that discharges upgraded under special discharge review programs be reconsidered under the newly established uniform discharge review standards.  On 29 March 1978, these newly established uniform discharge review standards were published in Department of Defense Directive 1332-28.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his UD based on his overall record of service and due to the personal family problems he had experienced upon his return from the RVN has been carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief. 

2.  The applicant's discharge processing was accomplished in accordance with the applicable law.  All requirements of law were met and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence of record confirms the applicant was terminated from the reconciliation service program based on his failure to complete the required alternate service period and therefore was never issued a clemency discharge under the provisions of PP 4313.  Therefore, given his accrual of 1,540 days of time lost due to AWOL during the enlistment period under review and the fact his prior honorable service and service in the RVN is appropriately recognized in the DD Form 214 he was issued on 19 December 1968, there is an insufficient evidentiary basis to support an upgrade of his UD. 



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)                                         AR20120005792



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ABCMR Record of Proceedings (cont)                                         AR20120005792



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