IN THE CASE OF:	  

		BOARD DATE:	  13 November 2012

		DOCKET NUMBER:  AR20120007826 


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 an upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states:

* at the time of his discharge, he was told he would get an upgrade to honorable in 7 years; however, he never heard anything
* he was called to serve in March 1970, he did all his training, and he received orders to go overseas
* he was given 30 days of leave and he was to report to Fort Lewis, WA; however, his father got very sick
* he contacted the Selective Service and he received approval for an extended leave 
* he was told he would be notified by registered mail on where and when to report; however, he was never notified 
* he called the Selective Service and was told the same; he would be notified by registered mail
* he never received notification so in August 1970 he went to Fort Jackson, SC and turned himself in
* he was put in jail for over 90 days and released to a unit where the commanding officer told him to go home; he would be notified by registered mail on where to report
* to this day he has never received notification


3.  The applicant does not provide any additional 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 was inducted in the Army of the United States on 12 March 1970.  He completed training and was awarded military occupational specialty 36K (Wireman).  The highest rank/grade he attained while on active duty was private (PV2)/E-2.

3.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 29 March 1971, shows the applicant was absent without leave (AWOL) from 19 August 1970 to 28 March 1971.

4.  A DA Form 3545 (Deserter Wanted by the Armed Forces), dated 2 June 1971, shows the applicant was AWOL from 13 May 1971 to 1 June 1971.

5.  In response to the applicant's letter/telephone call of 20 September 1974, a letter, subject:  Participation in the Program Established by Presidential Proclamation 4313, 16 September 1974, dated 24 September 1974, shows he was advised:

* he was eligible for the program and he was directed to report to Fort Benjamin Harrison, IN on or about 2 October 1974
* upon his reporting, he would be afforded the opportunity to consult with counsel, to request a discharge for the good of the service, to reaffirm his allegiance, and to pledge to perform alternate service for a period not to exceed 24 months

*	upon completion of the foregoing procedures, to include a medical examination, he would be given an undesirable discharge
*	upon reporting, should he refuse to execute any of the above, he would be ineligible to participate in the program and would be processed in accordance with the then current procedures, which may have included trial by court-martial

* servicemen who satisfactorily complete an assigned period of alternate service of not more than 24 months would receive a Clemency Discharge Certificate
* transportation instructions in the event he did not have sufficient funds
* he was to keep a copy of the letter in possession at all times until it was presented to the Joint Clemency Processing Center at Fort Benjamin Harrison

6.  An undated statement signed by the applicant shows he consulted with counsel and elected to sign a Reaffirmation Allegiance, a Pledge of Public Service, and accept an Undesirable Discharge.  A witness statement was signed on 4 October 1974.

7.  Special Orders Number 201, issued by the U.S. Army Administration Center, Fort Benjamin Harrison, dated 2 October 1974, shows that after having been dropped from the rolls of his organization, the applicant was returned to military control from an AWOL status and assigned to the Joint Clemency Processing Center, Fort Benjamin Harrison.  

8.  A Statement to the Board for Alternative Service, dated 2 October 1974 and signed by the applicant, shows his reason for absence from military service was due to family problems and his inability to adjust to military service.

9.  On 4 October 1974, having consulted with counsel, the applicant voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313.  In his request for discharge, he acknowledged:

	a.  He understood by requesting discharge, he would receive an undesirable discharge.  He also acknowledged he understood that if his request was 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 law.


	b.  He understood that within 15 days of receipt of his Undesirable Discharge Certificate, he must report to his State Director of Selective Service to arrange for performance of his alternate service.

10.  Special Orders Number 203, issued by the U.S. Army Administration Center, Fort Benjamin Harrison, dated 4 October 1974, shows the applicant was reduced to the rank/grade of private (PV1)/E-1 and he was discharged on 4 October 1974 with an undesirable discharge.

11.  The applicant's DD Form 214 he was issued at the time shows:

* he was discharged on 4 October 1974 with a character of service of under other than honorable conditions and issued a DD Form 258A (Undesirable Discharge Certificate)
* he completed 7 months and 15 days of total active service
* his time lost before his normal expiration of term of service (ETS) was 509 days
* his time lost after his normal ETS was 931 days
* he agreed to serve 24 months of alternate service pursuant to Presidential Proclamation 4313
* his separation was for the good of the service by reason of a willful and persistent unauthorized absence pursuant to Presidential Proclamation 4313

12.  On 10 October 1974, the applicant was cleared by the U.S. Army, nullifying his status as a deserter.

13.  A letter from the Reconciliation Service Division Manager, National Headquarters, Selective Service System, Washington, D.C., dated 12 June 1975, shows the applicant was notified he was terminated from enrollment in the Reconciliation Service Program.  The letter also stated:

	a.  After this individual was processed by the Joint Clemency Processing Center, he enrolled in the Reconciliation Service Program.  The requirements of the program were explained to him and efforts were made to provide an opportunity for him to satisfactorily complete his alternate service.

	b.  The record reflects the details of the efforts to assist this individual since the date of enrollment.  The decision to terminate him from active enrollment in the program was based on the following information:  Individual was non-


cooperative with efforts to place him on an approvable job.  He failed to report for a scheduled interview and he failed to respond to official correspondence.

14.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.

	a.  Paragraph 3-7a states 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge to an honorable discharge was carefully considered.

2.  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.

3.  His record shows he was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge and he voluntarily requested discharge under the provisions of Presidential Proclamation 4313 to avoid a trial by court-martial which could have resulted in a felony conviction.

4.  Discharges under the provisions of Presidential Proclamation 4313 required a voluntary request for discharge for the good of the service, reaffirmation of allegiance to country, and a pledge to perform alternate service for a period not to exceed 24 months.  As such, government regularity insofar as the discharge process must be presumed.  Therefore, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected 


throughout the separation process.  Further, it appears the applicant's discharge reflects his overall record of military service.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting him 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)                                         AR20120007826



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ABCMR Record of Proceedings (cont)                                         AR20120007826



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