BOARD DATE:	  13 November 2012

		DOCKET NUMBER:  AR20120007069 


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, in effect, an upgrade of his under other than honorable conditions discharge.

2.  The applicant states, in effect, he asked to leave Vietnam not to be discharged.  He was the only one to carry on his last name and needed to be close to his 86-year old grandmother and pregnant sister to help them when necessary.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty).

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 having had previous enlisted service, the applicant reenlisted in the Regular Army on 27 October 1970 and held military occupational specialty 62M (Rough Terrain Forklift and Loader Operator).

3.  His DA Form 20 (Enlisted Qualification Record) shows he was assigned to Vietnam from 26 May 1970 to 9 June 1971.  During that period he served with Company B, 19th Engineer Battalion (Combat), in Vietnam from 20 June 1970 to 11 November 1970 and the 610th Engineer Company (Combat Support) from 
12 November 1970 to 9 June 1971.

4.  His record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 
29 December 1970, for wrongfully possessing a quantity of less than one ounce of a habit forming, non-specific narcotic drug.  

5.  His DA Form 20 shows he went absent without leave (AWOL) on 1 March 1971 and was later dropped from the rolls (DFR) on 9 June 1971.  

6.  His record contains a memorandum, issued by the commanding officer of, 610th Engineer Company, on 15 June 1971.  This memorandum provided a chronological listing of events which may have contributed to the applicant's absence, and indicated his conduct and efficiency was unsatisfactory.

* He reenlisted in October 1970 
* He took reenlistment leave in December 1970
* He was assigned, on temporary duty, to Fort Polk, LA
* On 19 January 1971, he initiated a request for a hardship discharge
* On 18 February 1971, his request was disapproved

7.  His record contains an enlisted statement/request for discharge for the good of the service, dated 2 January 1975, wherein the applicant voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313, dated 16 September 1974.  He indicated:

	a.  He understood his absence was characterized as a willful and persistent unauthorized absence for which he was subject to trial by court-martial for a violation of the UCMJ and could lead to the imposition of a bad conduct discharge or dishonorable discharge.  He acknowledged he was making the request of his own free will, he had not been subject to coercion, and he had been afforded the opportunity to consult with counsel and had been fully advised as to the nature of the offenses for which he could be tried and the maximum permissible punishment which could be imposed.  

	c.  He understood that he would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of all service benefits and Department of Veterans Affairs benefits, could be deprived of his rights as a veteran under Federal and State law, he could expect to encounter substantial prejudice in civilian life as a result of an undesirable discharge.

	d.  He understood that within 15 days of the date of receipt of the Undesirable Discharge Certificate, he was required to report to his State Director of Selective Services to arrange for the performance of alternate service.  He further understood that satisfactory completion of such alternate service would be acknowledged by the issuance of a Clemency Discharger Certificate, but that this certificate would not alter his ineligibility for benefits predicated upon his military service.

8.  His record contains a reaffirmation of allegiance and pledge to complete alternate service, dated 2 February 1975, wherein he acknowledged, on 1 March 1971, he voluntarily absented himself from his military unit without being authorized and pledged to complete 13 months of alternate service.

9.  On 2 January 1975, he received an under other than honorable conditions discharge under the provisions of Presidential Proclamation 4313.  His DD Form 214 shows he completed 4 months and 4 days of net active service during the period of his enlistment and that he had 966 days time lost before his normal expiration of term of service and 429 days after his normal expiration of term of service.

10.  His record contains a letter issued by the National Headquarters, Selective Service System, Reconciliation Service Division, Washington D.C., on 24 July 1975.  This letter stated the applicant had been removed from the reconciliation service program because he left his approved job and failed to respond to official correspondence, and; thereby, failed to satisfactorily complete his alternative service obligation.

11.  The applicant applied to the Army Discharge Review Board (ADRB) and requested and upgrade of his discharge.  The ADRB denied his request on 
29 August 1988.

12.  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.  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.  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.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  Paragraph 3-7b states 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 applicant's record shows he had a history of NJP and extensive AWOL.  Additionally, he failed to satisfactorily complete his alternative service obligation because he left his place of duty without authority and did not respond to official correspondence.  

2.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20120007069





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ABCMR Record of Proceedings (cont)                                         AR20120007069



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